United States v. McDonald Hicks, Eli Davis, Jr.

concurring:

I concur in the order of the majority and add what I believe to be a proper explanation of the posture of this case.

The Supreme Court vacated and remanded our initial disposition of this case, 625 F.2d 216 (9th Cir. 1980), vacated, — U.S. —, 101 S.Ct. 1752 , 68 L.Ed.2d 233 (1981), in light of its decision in Michael M. v. Superior Court, 450 U.S. 464 , 101 S.Ct. 1200 , 67 L.Ed.2d 437 (1981). In Michael M., the Court rejected a claim that a California statutory rape law violated the Equal Protection Clause of the Fourteenth Amendment. The Court had before it the finding of the California Supreme Court that the gender-based classification in the statute was designed to prevent illegitimate teenage pregnancies. The Supreme Court observed that the finding of the California Supreme Court was entitled to great deference.

In our original opinion, we did not hold that statutory rape statutes that punish only the male are unconstitutional. The opinion does not turn on whether the Equal Protection Clause was violated, but focuses on the question of the burden of proof. Relying on the Supreme Court and our own cases, we held that “once an appropriate party invokes…

ORDER

The Supreme Court has vacated and remanded our initial disposition of this case, 625 F.2d 216 (9th Cir. 1980), vacated, — *245 U.S. —, 101 S.Ct. 1752 , 68 L.Ed.2d 233 (1981), in light of its decision in Michael M. v. Superior Court, 450 U.S. 464 , 101 S.Ct. 1200 , 67 L.Ed.2d 437 (1981). Since then, another panel of this court has held that 18 U.S.C. § 2032 , the statute involved in the case before us, does not deny equal protection of the law. United States v. Sangrey, 648 F.2d 597 (9th Cir. 1981). Therefore, we reverse the dismissal of the indictment against Hicks and Davis, and remand for further proceedings.

REVERSED AND REMANDED.

657 F.2d 244 UNITED STATES of America, Plaintiff-Appellant, v. McDonald HICKS, Eli Davis, Jr., Defendants-Appellees. No. 78-2534. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 9, 1979. Decided Sept. 8, 1981. Appeal from the United States District Court for the District of Arizona; Walter E. Craig, D.J., Presiding. Dale Danneman, Asst. U. S. Atty., Phoenix, Ariz., argued, for plaintiff-appellant; William F. Woods, Asst. U. S. Atty., Phoenix, Ariz., on brief. J. Douglas McVay, David M. Ochoa, Asst. Federal Public Defender, Phoenix, Ariz., for defendants-appellees. ORDER Before WALLACE and TANG, Circuit Judges, and WHELAN, * District Judge. The Supreme Court has vacated and remanded our initial disposition of this case, 625 F.2d 216 (9th Cir. 1980), vacated, U.S. ----, 101 S.Ct. 1752 , 68 L.Ed.2d 233 (1981), in light of its decision in Michael M. v. Superior Court, 450 U.S. 464 , 101 S.Ct. 1200 , 67 L.Ed.2d 437 (1981). Since then, another panel of this court has held that 18 U.S.C. § 2032 , the statute involved in the case before us, does not deny equal protection of the law. United States v. Sangrey, 648 F.2d 597 (9th Cir. 1981). Therefore, we reverse…