Claremont Insider: Xavier, Back in the News

Sunday, March 27, 2011

Xavier, Back in the News

Someone forgot to tell Xavier Alvarez (image, left) that his 15 minutes of fame expired long ago. The former Three Valleys Municipal Water District board member from Pomona made the LA Times last week after the U.S. Court of Appeals for the Ninth District upheld an August 2010 ruling that the federal Stolen Valor Act, under which Alvarez was convicted for lying about being a Medal of Honor recipient, is unconstitutional.

According to the Times article, the court agreed that lying, however abhorrent, is protected under the First Amendment. The Times piece described the appellate court's reasoning:

It wasn't the only time Alvarez had traded in lies. According to an earlier decision in his case, he claimed to have rescued the U.S. ambassador during the Iranian hostage crisis (the reason for his fictitious Medal of Honor) and to have played hockey for the Detroit Red Wings. If Congress could punish misstatements about a military decoration, there would be no constitutional obstacle to criminalizing those other lies.

Chief Judge Alex Kozinski made the point more pithily: "If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the congressional Medal of Honor, but also the JDater who falsely claims he's Jewish or the dentist who assures you it won't hurt a bit. Phrases such as 'I'm working late tonight, hunny,' 'I got stuck in traffic' and 'I didn't inhale' could all be made into crimes."
Although Alvarez's misdemeanor conviction under the Stolen Valor Act is in question, his LA County felony convictions for misappropriation of public funds, grand theft, and insurance fraud still stand. Alvarez received a five-year prison sentence for falsely claiming he was still married to his ex-wife in order to qualify her for his Three Valleys healthcare plan.

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Here is the appellate decision in the federal case:

3-21-11 appellate decision

The U.S. Attorney's office isn't letting the matter rest there, however. On Friday, they filed a motion to stay the appellate decision for 90 days pending a petition for a writ of certiorari seeking to have the Supreme Court to review the case. The government's motion questioned the court's decision to annul a law enacted by Congress:

A circuit court decision holding an Act of Congress unconstitutional inherently presents "an important question of federal law," Sup. Ct. R. 10(c), in a petition for a writ of certiorari.

Here is the U.S. Attorney's motion to stay:

3-25-11 motion to stay mandate