(dissenting).
While I share the view of the majority that the indictment was not fatally defective, I would reverse and remand to the trial court with instructions to it to grant the defendants a new trial. See, United States v. Lewis Food Company, 366 F.2d 710 (9th Cir. 1966).1 At this *1131new trial, the principal question would be whether, in the light of all the evidence, the contributions to the federal candidates were made from funds which could fairly be said to have been voluntarily contributed by members and nonmembers with knowledge of the fact that all or part of their contribution would be used for political purposes. See, United States v. International Union, 352 U.S. 567, 592, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957); 93 Cong.Rec. 6437-6440 (1947).
There is evidence in this record indicating that the contributions to the Pipe-fitters’ fund were, in the above sense, knowingly and voluntarily made. There is also substantial evidence to the contrary. But the jury was specifically instructed that it could find the defendants guilty even if it believed all of the contributions were voluntarily made.2 Such an instruction was, in my view, erroneous.
The government acknowledges in its brief that a union acting through its officers, agents and members may form a political organization parallel to the union and use union personnel to solicit and spend direct voluntary contributions for federal elections. It concedes that COPE and countless other political action groups have been so organized and operated. The difficulty with this acknowledgement is that is comes too late. The trial court, although requested to, refused to give an instruction embodying this concept. Indeed, the thrust of its direction was that the very participation of union officers and agents in the organization and operation of the political fund was evidence of impropriety. Compare, International Ass’n of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961).
The government contends in its brief that the contributions to the fund were in fact assessments, were in fact part of the general dues’ structure and were in fact involuntarily made. These may indeed be the facts and if the jury had made such a finding, a violation of Section 610 would have been made out. But again, this the jury was not requested to so find. It was instructed to answer the broader question of whether the contributed funds constituted a part of the Union funds. Nineteen facts and circumstances were listed as bearing on the answer to this question.3 Some of *1132the facts and circumstances were relevant to the issue of knowledge and voluntariness and others, irrelevant. One example of the latter was the instruction that the jury could consider whether the payments to the fund were routinely collected by the Union Stewards and agents of the Union at the job site.
The government further contends that the political funds were spent by the individual defendants arbitrarily and without consultation with the contributors. There is some evidence in the record to support this contention. Although such a practice is of questionable legality and is undesirable and undemocratic, it constitutes no violation of Section 610.
The argument is also made by the government that at least one official of the fund diverted a portion of the funds collected for political purposes to his personal use. While this act may also have been illegal and reprehensible, it was not a violation of the statute.
Finally, the government contends on appeal that the fund was used to provide
benefits to some of the members of the Union. There is again evidence in the record to support this contention, but the fact of the matter is that the fund was established for educational, legislative, charitable and defense as well as political purposes. And as I read Section 610, there is nothing in it which prohibits a union, its officers and agents from soliciting voluntary contributions for political and other purposes so long as those contributing know that all or part of the funds will be used in support of political candidates.
Nothing I have said in this opinion should be taken to indicate that a union or its officers and agents can evade the prohibitions of Section 610 by obtaining contribution cards from contributors indicating that the contributions were voluntarily made for political purposes. The test is whether the contributions are in fact so made.
It has been and is my opinion that 18 U.S.C. § 610 is clearly unconstitutional if construed as the majority opinion re*1133quires. I am equally convinced, however, that the constitutionality of the statute should not be decided until a conviction is obtained under proper instructions.
On two separate occasions in the last twenty-five years, the Supreme Court has been asked to decide the constitutionality of § 610. It has declined to do so on both occasions. In United States v. C. I. O., 335 U.S. 106, 68 S.Ct. 1349, 92 L. Ed. 1849 (1948), the defendants were indicted under the statute for activities related to the publication and distribution of their weekly union periodical. The District Court dismissed the indictment, holding the statute to be an unconstitutional impairment of First Amendment rights. The government appealed the District Court’s ruling under the Criminal Appeals Act, 18 U.S.C.A. § 682. On appeal, both sides argued the constitutionality of the act. The Supreme Court, however, affirmed the dismissal of the indictment on the grounds, raised sua sponte, that the indictment did not charge an offense within the scope of the statute. The majority opinion noted the parties’ preoccupation with the constitutional question, but stated:
“We do not admit any duty in this Court to pass upon such a contention on an appeal under the Criminal Appeals Act except in cases of logical necessity.”
Id. at 110, 68 S.Ct. at 1351.
Justice Frankfurter, in a concurring opinion, was even more circumspect about deciding the case. He noted, first, Chief Justice Marshall’s observation that:
“No questions can be brought before a judicial tribunal of greater delicacy than those which involve the constitutionality of a legislative act. If they become indispensably necessary to the case, the court must meet and decide them; but if the case may be determined on other points, a just respect for the legislature requires, that the obligation of its laws should not be unnecessarily and wantonly assailed.” (Citation omitted.)
Id. at 125, 68 S.Ct. at 1359. Frankfurter went on to argue that the entire case was not ripe for adjudication, concluding that:
“I cannot escape the conclusion that in a natural eagerness to elicit from this Court a decision at the earliest possible moment, each side was at least unwittingly the ally of the other in bringing before this Court far-reaching questions of constitutionality under circumstances which all the best teachings of this Court admonish us not to entertain.
“But since my brethren find that the case calls for adjudication, I join in the Court’s opinion. I do so because of another rule of constitutional adjudication which requires us to give a statute an allowable construction that fairly avoids a constitutional issue.”
Id. at 129, 68 S.Ct. at 1360.
Nine years later, in United States v. International Union, supra, the Supreme Court was, for the second time, asked to decide the constitutionality of § 610. There, the Court was again faced with an appeal from a District Court’s dismissal of an indictment charging union violation of § 610. The District Court had held that the indictment did not charge an offense under the statute and, therefore, did not rule on the constitutional questions. A careful study of legislative history of § 610 convinced the Court that the acts charged in the indictment were within the prescriptions of the statute.
The Court, per Justice Frankfurter, then faced the union’s contention that:
“* * * [I]f * * * [the statute] * * * embraces the activity alleged in the indictment, it offends several rights guaranteed by the Constitution.”
Justice Frankfurter declined to answer this contention, responding:
“ * * * Once more we are confronted with the duty of being mindful of the conditions under which we may enter upon the delicate process of constitutional adjudication.
*1134“The impressive lesson of history confirms the wisdom of the repeated enunciation, the variously expressed admonition, of self-imposed inhibition against passing on the validity of an Act of Congress ‘unless absolutely necessary to a decision of the case.’ * * Observance of this principle makes for the minimum tension within our democratic political system where ‘Scarcely any * * * become, sooner or later, a subject of judicial debate.’
“Refusal to anticipate constitutional questions is peculiarly appropriate in the circumstances of this case. First of all, these questions come to us unillumined by the consideration of a single judge — we are asked to decide them in the first instance. * * * Finally by remanding the case for trial, it may well be that the Court will not be called upon to pass on the questions now raised. * * *
“Counsel are prone to shape litigation, so far as it is within their control, in order to secure comprehensive rulings. This is true both of counsel for defendants and for the government. Such a desire on their part is not difficult to appreciate. But the Court has its responsibility. Matter now buried under abstract constitutional issues may, by the elucidation of a trial, be brought to the surface, and in the outcome constitutional questions may disappear.” (Citations omitted and emphasis added.)
Id. .352 U.S. at 590-592, 77 S.Ct. at 540-542.
In spite of the Supreme Court’s obvious reluctance to decide the constitutionality of § 610, as well as other legislative acts,4 until absolutely necessary, our Court today rushes to do just that. My brother Matthes defends the action of the Court by arguing that the Courts of Appeals are rigidly bound to the literal wording of Rule 28(a) (2).
Rule 28(a) (2), which states in part that the brief of appellant shall contain “[a] statement of the issues presented for review,” was primarily designed to clarify counsel’s presentation of an appeal as well as to lighten the labors of the court. Thys Company v. Anglo California National Bank, 219 F.2d 131 (9th Cir.), cert. denied, 349 U.S. 946, 75 S.Ct. 875, 99 L.Ed. 1272 (1955); Iva Ikuko Toguri D'Aquino v. United States, 192 F.2d 338 (9th Cir. 1951). It was not designed to permit counsel to manipulate this Court to their own interest or to prevent this Court from meeting its responsibility. See, United States v. International Union, supra; United States v. C. I. O., supra.
I recognize, as Justice Black enunciated in Clay v. Sun Insurance Office, 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960), that avoidance of constitutional questions is discretionary and should be used only under the proper circumstances. I can conceive of no circumstances more appropriate than those in this case. The minority’s decision would remand the case to the District Court for trial under appropriate and proper instructions. It is possible that under such instructions, our Court will not be called upon to judge this Congressional act.
The Supreme Court’s Rule 23(1) (c) 5 is similar, in scope and purpose, to our Rule 28(a) (2). Yet the Supreme Court has not felt the need to religiously follow this general rule in the face of other *1135important policy considerations.6 Nor have the appellate courts followed their own rule as strictly as Chief Judge Matthes would have us do. See, e. g., Platis v. United States, 409 F.2d 1009 (10th Cir. 1969); United States v. O’Connor, 291 F.2d 520 (2nd Cir. 1961); General Finance Loan Co. v. General Loan Co., 163 F.2d 709 (8th Cir. 1947).
Rule 28(a) (2) was intended to serve the Court, not to hamstring it. Long held notions of constitutional adjudication advise us to remand this case for a new trial with proper instructions. We should do so.
Judges LAY and BRIGHT have authorized me to state that they join in this dissenting opinion, and I join in Judge LAY’s dissent.
. “A great deal of evidence has been introduced on the question of whether the payments into the Pipefitters Voluntary Political, Educational Legislative, Charity and Defense Fund by members of Local 562 and others working under its jurisdiction were voluntary or involuntary. This evidence is relevant for your consideration, along with all other facts and circumstances in evidence, in determining whether the fund is a union fund. However, the mere fact that the payments into the fund may have been made voluntarily by some or even all of the contributors thereto does not, of itself, mean that the money so paid into the fund was not union money.”
. “1. Whether or not payments to the fund were routinely made at regular intervals at job sites,
“2. Whether or not payments to the fund were routinely collected by union stewards, foremen, area foremen, general foremen, or other agents of the union,
“3. Whether or not the payment to the fund was determined by a formula based upon the amount of hours or overtime hours worked upon a job under the supervision of the union,
*1132“4. Whether or not payments to the fund were at one rate for 562 members and at a different rate for members of other unions,
“5. Whether or not payments to the fund began, continued and terminated with employment on a job under the jurisdiction of the union,
“6. Whether or not monies of the fund were used to provide benefits to union members in their capacity as members,
“7. Whether or not payments to the fund by members of other unions were in lieu of payments to the union in the form of travel card dues in the amount of eight dollars per month,
“8. Whether or not monies of the fund were used in part to promote activities properly permitted to the union pursuant to Section 2.05 of its Constitution and by-laws,
‘'9. Whether or not payments to the fund were made by those affiliated with the union to the general exclusion of other classes of persons or organizations,
“10. Whether or not contributions to the fund were required as a condition of employment or continued employment of membership in Local 562,
“11. Whether or not the individuals who contributed to said fund signed a voluntary contribution agreement,
“12. Whether or not the contributions to said fund were made voluntarily or involuntarily,
“13. Whether or not the monies contributed to said fund were kept separate and distinct from the funds of Local 562.
“14. Whether or not some persons who worked under the jurisdiction of Local 562 did not contribute to said fund,
“15. Whether or not the monies of said fund were used in part to promote activities which were prohibited to Local 562 by its Constitution and By-Laws,
“16. Whether or not said fund was established and maintained pursuant to the advice of counsel.
“17. Whether or not the monies of said fund were reported to the Department of Labor on the LM-2 forms, which required the reporting of monies of Local 562,
“18. Whether or not expenditures from the fund were under the control of the union and its officers,
“19. Whether or not records used in the collection of the payments to the funds are similar to those employed from time to time by the union in the collection of its regular dues and assessments.”
. See, e. g., Mackey v. Mendoza-Martinez, 362 U.S. 384, 80 S.Ct. 785, 4 L.Ed.2d 812 (1960); Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1946).
. “Rule 23. The petition for certiorari
“1. The petition for writ of certiorari shall contain in the order here indicated—
“(c) The questions presented for review, expressed in the terms and circumstances of the case but without unnecessary detail. The statement of a question presented will be deemed to include every subsidiary question fairly comprised therein. Only the questions set forth in the petition or fairly comprised therein will be considered by the court.”
. This point is persuasively demonstrated by Chief Justice Warren’s dissent in Communist Party v. S.A.C. Board, 367 U.S. 115, 119-121, 81 S.Ct. 1357, 6 L.Ed. 2d 625 (1961). The majority’s failure to consider the issue urged there is not controlling in this case because of significant and material differences in the procedural postui-es of the two cases. At most, Communist Party was a case in which Justice Black’s notion of using discretion in avoiding constitutional questions led to a result opposite of that here.