United States v. Barry Lee Blakely

(concurring specially).

I agree that in light of the en banc Ehlert decision by this court, we are required to affirm the judgment of conviction. I think it appropriate to say, however, that if I had been a member of the court I would have associated myself with the dissenting judges and would have concurred in Judge Merrill’s opinion.

Convicted of having refused to submit to induction under the Universal Military Training Act, 50 U.S.C. App. § 462, Blakely appeals.

After having registered with his Local Board, Blakely was, on June 6, 1967, classified I-A, eligible for military service. Shortly thereafter, he was notified of his classification and of his right to appeal the Local Board’s decision. He did not choose to appeal and thereafter, having complied with the Board’s Order to Report for Physical Examination, was determined to be physically acceptable for military service. On May 6, 1968, he reported for induction, as he had been previously ordered to do, but he refused to submit to induction. After having so refused, and in undertaking to explain his refusal to Selective Service personnel at the induction station, Blakely presented a handwritten statement which reads:

At no previous time had Blakely claimed to be a conscientious objector or sought exemption from military service on the basis of conscientious objector beliefs. In the court below, he testified that such beliefs “crystallized” during his journey, by bus, to his induction station.

Some four months after having refused induction, and after…

424 F.2d 1043 UNITED STATES of America, Appellee, v. Barry Lee BLAKELY, Appellant. No. 24278. United States Court of Appeals, Ninth Circuit. April 8, 1970, Rehearing Denied April 29, 1970. J. B. Tietz (argued), Los Angeles, Cal., for appellant. Edward J. Wallin (argued), Asst. U.S. Atty., Wm. Matthew Byrne, U.S. Atty., Los Angeles, Cal., for appellee. Before TUTTLE, * ELY, and KILKENNY, Circuit Judges. ELY, Circuit Judge. 1 Convicted of having refused to submit to induction under the Universal Military Training Act, 50 U.S.C. App. 462, Blakely appeals. 2 After having registered with his Local Board, Blakely was, on June 6, 1967, classified I-A, eligible for military service. Shortly thereafter, he was notified of his classification and of his right to appeal the Local Board's decision. He did not choose to appeal and thereafter, having complied with the Board's Order to Report for Physical Examination, was determined to be physically acceptable for military service. On May 6, 1968, he reported for induction, as he had been previously ordered to do, but he refused to submit to induction. After having so refused, and in undertaking to explain his refusal to Selective Service…