(dissenting).
I would reverse the judgment below and remand for a new trial for the reasons set forth in JUDGE HEANEY’s dissenting opinion. I direct myself to the procedural question discussed in the concurring opinion.
First, I disagree with the majority that the trial court’s instruction was not attacked as error by the defendants in their original briefs on appeal. Second, this court set aside the original submission of the appeal and directed anew the parties to file supplemental briefs for the benefit of the court en banc. The defendants specifically question the propriety of the instruction in their supplemental brief and the government did not raise the issue of abandonment or noncompliance with the Federal Rules of Appellate Procedure. Third, it is an equally “deeply entrenched principle” that in the public interest and to guard against manifest injustice this court will notice errors not properly raised for review, if such errors are obvious or otherwise seriously affect the fairness and integrity of the judicial proceeding.
There exists a fundamental discrepancy in the concurring opinion’s restatement of the constitutional issues as raised by the defendants. The First Amendment issue is there stated to be:
“Section 610 is unconstitutional because it abridged appellants’ and all union members First Amendment rights.”
However, the proposition stated in defendants’ original brief is fashioned not as an abstraction but as a justiciable issue:
“Section 610, Title 18, U.S.C. as construed and applied by the Court below, abridges the defendants’ rights as well as the rights of all union members, of freedom of speech, press and assembly and the right to petition the Government for redress of grievances, in violation of the First Amendment of the Constitution of the United States.” (My emphasis.)
The justiciable controversy is the application of § 610 “as construed and applied by the Court below.” (My emphasis.) The district court’s instruction to the jurors informed them the law of the case as it was actually tried. The district court instructed the jury: “[T]he 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.” The defendants’ 98 page attack is explicitly directed to this construction of Section 610. To now urge that the district court’s instruction is not raised as error by the defendants on appeal is to ignore the heart of the matter being litigated. Cf. Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). *1136It approaches appellate review in the celestial light of abstractness.
To follow the logic of the majority’s theory of abandonment does more than to shackle the appellate process to whatever narrow remedy might be sought by a party. It refuses as well any consideration of the broad congressional power given to this court under 28 U.S.C.A. § 2106,1 and requires us to determine troublesome constitutional issues raised not by the congressional intent or enactment but by reason of the district court’s narrow interpretation of the statute.
We should not pass upon the issue of the constitutionality of § 610 when it is not properly before us. The district court failed to instruct the jury that voluntary contributions to the fund are not within the scope of the statute. The statute does not and cannot proscribe use of voluntary funds. United States v. International Union United Auto, etc., Workers, 352 U.S. 567, 592, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957); United States v. C. I. O., 335 U.S. 106, 123, 68 S. Ct. 1349, 92 L.Ed. 1849 (1948). Not until the statute is given its intended construction should we weigh the constitutional issues presented. As the concurring opinion authoritatively concedes, constitutional validity of legislative action should not be passed upon until the conflict is unavoidable. See also Thorpe v. Housing Authority, 393 U.S. 268, 284, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969); Rosenberg v. Fleuti, 374 U.S. 449, 451, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963). As this writer observed in In re Weitzman, 426 F.2d 439, 454-455 (8 Cir. 1970), “the abandoning of a valid claim on appeal cannot dictate to the court when it must reach a constitutional issue.” Thus, the majority, under the guise of allegiance to rules of procedure, admittedly setting aside well established principles of constitutional construction, must, because the parties so shaped the question, meet constitutional issues headon. As the concurring opinion concedes, this is simply not good policy, nor should it be.
The majority opinion upholds the constitutionality of § 610. It does so without reference to the facts of the case, since the basis of the opinion completely disregards the district court’s narrow and erroneous construction of the statute. In doing so, it overlooks that the defendants were convicted under the erroneous, and in my judgment, unconstitutional, application of the statute as encompassing funds voluntarily paid by union members for political activity. The majority justify their decision because they say the instruction itself is not attacked on appeal. The defendants’ original brief belies this statement. ■ The instruction is expressly attacked and defendants’ counsel repeatedly and specifically explain the basis of the attack.2
*1137In essence, what the majority is saying is that although the district court’s erroneous construction of the statute is raised on appeal, the defendants failed to ask for the right relief or remedy (a new trial), as a consequence of which the judgment must be affirmed. The federal rules governing procedure were never intended to punish a party for failure to seek the proper relief.3 Decisions are replete holding that a court of appeals may shape the remedy regardless of the relief sought.4 Section 2106 is authority and index to these decisions. See Neely *1138v. Martin K. Eby Constr. Co., 386 U.S. 317, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967).5 FRAP is not concerned with how the issue is raised, but what is raised. To reason that a defendant is to be deprived of any relief from an erroneous conviction merely because he names the wrong remedy on appeal is reminiscent of the rigid and rationalized distinctions from the days of code pleading.6
Assuming arguendo merit to the majority’s view in the context of the original briefs, I add an additional word of concern. On August 19, 1970, this court ordered the panel’s original judgment to be vacated and to have the case resubmitted to the coúrt en bane. The clerk of the court was then directed to notify the parties that they could submit supplemental briefs. On September 10, 1970, Mr. Tucker wrote the parties:
“Reference is made to the Court’s order of August 19, 1970, vacating our previous judgment and reinstating the case on our calendar. I am directed by the Court to inform counsel that this appeal is to be submitted to the Court en banc on Wednesday, October 14,1970, at 9 a. m.
“Counsel for appellants may have to and including September 22, 1970, in which to file any additional briefs thought appropriate and counsel for appellee, United States, may have to and including October 1,1970, in which to file additional brief.
“Any subsequent briefs may be in typewritten form on lettersize paper and fastened in the left margin. I will need an original and seven copies of typewritten briefs which should, of course, be served on opposing counsel.”
On September 17, 1970, the defendants submitted a supplemental brief requesting in the alternative a new trial, for the reason that:
“The Court below erred in instructing the jury that it could find the defendants guilty even if it believed all of the contributions to the Political Fund were voluntarily made.”
On September 29, 1970, the government responded solely to that proposition. Ironically, it is not the government that first raises the question of violation of the Federal Rules of Appellate Procedure.
The concurring opinion construes the Federal Rules of Appellate Procedure as inflexibly barring this court’s consideration of the erroneous instruction. Assuming solely for the sake of argument that one could reasonably say that the defendants did not properly attack the court’s construction of the statute on appeal, the concurring opinion overlooks another “deeply entrenched principle” followed by this circuit. Senior Judge Vogel, when Chief Judge of this court, said in Harris v. Smith, 372 F.2d 806, 815 (8 Cir. 1967), “An additional ground of error, although not urged on appeal, should be noticed by this court because of its substantial effect upon the rights of the parties.” (My emphasis.) Judge Vogel quoted from General Finance Loan Co. v. General Loan Co., 163 F.2d 709, *1139711 (8 Cir. 1947), where the late Judge Thomas observed:
“ ‘We may, however, in our discretion consider a plain error apparent on the face of the record for the purpose of avoiding a manifest miscarriage of justice, or where the issue raised is one of public concern, even in a civil ease. Kincade v. Mikles, 8 Cir., 144 F.2d 784; National Aluminate Corporation v. Permutit Co., 8 Cir., 144 F.2d 93.’ ”
And we said in Lewis v. United States, 340 F.2d 678, 683 (8 Cir. 1965), “ ‘it (is) our duty to correct clear error’ where shown to exist.” See also Harris v. United States, 297 F.2d 491, 492 (8 Cir. 1961); Page v. United States, 282 F.2d 807, 810 (8 Cir. 1960); United States v. 353 Cases, Etc., 247 F.2d 473, 477 (8 Cir. 1957); Cave v. United States, 159 F.2d 464, 469 (8 Cir. 1947), cert. denied 331 U.S. 847, 67 S.Ct. 1732, 91 L.Ed. 1856, rehearing denied 332 U.S. 786, 68 S.Ct. 34, 92 L.Ed. 369. The concurring opinion’s inflexible approach to appellate review is contrary to the view taken not only by this circuit, but by all other courts of appeals. In United States v. Achilli, 234 F.2d 797, 809 (7 Cir. 1956), aff’d 353 U.S. 373, 77 S.Ct. 995, 1 L.Ed.2d 918 (1957), the court said: “Rule 52(b) was designed to reach errors of such a substantial nature that they would, if not corrected, result in a manifest miscarriage of justice, [citing authority.] Inasmuch as errors within the comprehension of the provisions of this rule are those of such a nature that they must be corrected to prevent a manifest injustice, it is incumbent upon a reviewing court to notice such error sua sponte although the issue presented is not raised on appeal.” (My emphasis.) In Forakis v. United States, 137 F.2d 581, 582 (10 Cir. 1943), the Court of Appeals for the Tenth Circuit observed: “That general rule [errors not preserved are not reviewable on appeal] bears the well recognized exception that where life or liberty is involved, an appellate court may notice and correct serious errors which were fatal to the rights of the accused even though they were not challenged or reserved.” In Gros v. United States, 136 F.2d 878, 880-881 (9 Cir. 1943), reversed on rehearing 138 F.2d 261, the principle is similarly expressed: “It is obvious that it is immaterial in a court of justice whether the court sua sponte first recognizes and calls attention to a plain error ‘absolutely vital to defendants’ and that appellant’s counsel then urges it, or that counsel first calls the appellate court’s attention to the vital error.” See also Fisher v. United States, 328 U.S. 463, 467-468, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946); Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); Reisman v. United States, 409 F.2d 789, 791 (9 Cir. 1969); McMillan v. New Jersey, 408 F.2d 1375, 1377 n. 7 (3 Cir. 1969); Garza-Fuentes v. United States, 400 F.2d 219, 223 (5 Cir. 1968), cert. denied 394 U.S. 963, 89 S.Ct. 1311, 22 L.Ed.2d 563 (1969); Stephan v. United States, 133 F.2d 87, 89-90 (6 Cir. 1943), cert. denied 318 U.S. 781, 63 S.Ct. 858, 87 L.Ed. 1148 (1943).
I cannot judicially accept the reasoning that manifest injustice may take place in a criminal trial and yet lay beyond the reach of appellate review because a lawyer inadvertently failed to protect the defendant’s rights in an appellate brief. There should exist no talismanic phrases to excite an appellate judge to recognize a miscarriage of justice in a criminal appeal. For an appeals judge to take effective action in these circumstances, even where counsel fails to properly preserve the error, is not advocacy, but rather an urgent and necessary exercise of judicial responsibility. If this be proscribed as advocacy, the breadth and meaning of judicial review would have been rendered meaningless long ago. See generally Cardozo, The Growth of the Law (1924).7
*1140As the Supreme Court has observed:
“Rules of practice and procedure are devised to promote the ends of justice, not to defeat them. A rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with this policy. Orderly rules of procedure do not require sacrifice of the rules fundamental justice.” Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941).8I am authorized to say that Judge HEANEY and Judge BRIGHT concur in this opinion.
. Section 2106 reads:
“The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.”
. The instruction is set out on page 37 of defendants’ brief. Defendants’ brief argues :
“The Court also instructed that (A. p. 1116) : ‘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.’ ” p. 37.
“The Court below construed Section 610 as prohibiting officers, agents and members of a union from forming a parallel political organization and utilizing the union leaders, officers and agents in such political organization, in the obtaining, pooling and expending of direct voluntary contributions for political purposes.” p. 59.
“The statute as construed denies individual rights of voluntary association for it forbids working men to associate and act through their labor leaders in the political field to protect their collective rights. This includes both their rights as union members and the rights of the union which they have joined. Even though the choice of candidates may determine whether those rights will be secured or destroyed, the statute as *1137construed, prohibits union members from protecting and advancing those rights.” p. 65.
“ * * * The Court instructed the jury that it could find that a separate voluntary political fund was in fact a union fund by any and all circumstances in evidence (A. pp. 1112-1115). “This interpretation was made by the court despite the legislative history to the effect that a separate voluntary fund, such as the one here, is excluded from the criminal sanctions of Section 610 and without any judicial support or any prior prosecution (See Argument I, supra). Thus, as applied and interpreted by the lower court, Section 610 is unconstitutionally vague as it failed to give defendants fair warning of its scope and was a retroactive, unforeseeable judicial enlargement of the statute.
“Such a fortuitous judicial construction, analogous to legislative ex post facto, intensifies the vagueness of the statute and is even more so inimical to due process than if the statute is merely vague on its face.” pp. 68-69.
“As such, the statute, as constructed by the district court, totally inhibits the fundamental freedoms of expression, assembly and petition guaranteed by the First Amendment (See Argument II, supra). Where a statute operates to restrain protected First Amendment freedoms, stricter standards of permissible statutory vagueness are to be applied.” p. 72.
. This application of the rules violates the spirit and letter of the rules themselves. Compare Rule 54(c) of Fed.R.Civ.P., which reads in part: “[E]very final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” (My emphasis.)
. Compare Turk v. United States, 429 F.2d 1327 (8 Cir. 1970), an opinion in which Chief Judge Matthes joined, where because of insufficient evidence to justify an arrest and search we vacated a judgment of conviction, but remanded sua sponte for an evidentiary hearing on probable cause.
This court’s recent remand in Laclede Gas Co. v. NLRB, 421 F.2d 610 (8 Cir. 1970), is viewed with jaundiced eye in the concurring opinion. It should be stated that a vigorous petition for a rehearing en banc was filed in that case. Not a single judge requested a vote for an en banc hearing and the petition was denied. Additionally unrecalled is the existence of compelling authority and reason for a court of appeals to remand to the National Labor Relations Board under such circumstances. See e. g., Nuelsen v. Sorensen, 293 F.2d 454, 462 (9 Cir. 1961), where the court said:
“Yet none of these theories were advanced in appellant’s pleadings, stated as issues in the pre-trial order, presented in the trial court, or dealt with in the briefs on appeal. This court has refused to reverse on a ground not argued in the trial court. United States v. Waechter, 9 Cir., 195 F.2d 963.
“This accords- with the general rule that an appellate court will not consider sua sponte arguments not presented or urged by the litigants. This restraint is essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues which the trial forum is to decide and in order that the litigants not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence. Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037.
“There is, however, no rigid and undeviating judicially declared practice under which courts of review invariably and under all circumstances decline to consider all questions which have not previously been specifically urged. Indeed there could not be without doing violence to the statutes which give federal appellate courts the power to modify, reverse or remand decisions ‘as may be just under the circumstances.’ 28 Ü.S.C.A. § 2106. Exceptional cases or particular circumstances may prompt a reviewing court, where injustice might otherwise result or where public policy requires, to consider questions neither pressed nor passed upon below. The power to raise and decide questions sua *1138sponte is, however, to be exercised sparingly and with fall realization of the restrictions and limitations inherent in its employment.
“Rather than consider the matter sua sponte, of course, the appellate court may note the existence of the unargued, undecided question and remand the case to the lower court. This makes the decision on the matter one reflecting the consideration of a trial court and the counsel in the case.
“In our opinion justice requires that such a course be followed in this case.” (My emphasis.)
. In Neely the court of appeals had granted a judgment n. o. v. Although a motion for new trial was not presented by the verdict-holder on appeal nor by a petition for rehearing, the Supreme Court stated that “It was, of course, incumbent on the Court of Appeals to consider the new trial question in the light of its own experience with the case. But we will not assume that the court ignored its duty in this respect, although it would have been better had its opinion expressly dealt with the new trial question.” 386 U.S. at 329-330, 87 S.Ct. at 1080. (My emphasis.)
. This recalls to mind Maitland’s aphorism that “the forms of action we have buried, but they still rule us from their graves.” Maitland, The Forms of Action at Common Law 296 (1909).
. In this work Mr. Justice Cardozo, while on the New York Court of Appeals, observed :
“Every decision, where the judicial process is creative, and not merely static or declaratory, is a reflection of the prob*1140lom and an expression of the answer. The philosophy may be inconsistent or unsound or distorted. The answers will share the vice, and be perverse or unwise or contradictory. The problem is always present. We shall not find the solution by acting as if there were nothing to be solved.” At 27.
. Mr. Justice Cardozo also reflected:
“The passing years have not brought to me the gift of wisdom, but they have at least opened my eyes to the perception that distinctions which in those early days seemed sharp and obvious are in truth 'shadowy and blurred, the walls of the compartments in no wise water-tight or rigid.” Cardozo, supra n. 7 at 36.