Wednesday, May 07, 2008

A Not-So-Novel Defense

A few months back, we introduced you to Xavier Alvarez, the Pomona, California water board member who ran afoul of the feds by making false claims about his military record. Asked to introduce himself at the meeting of a neighboring water board, Mr. Alvarez claimed that he was a highly-decorated combat veteran:

“I’m a retired Marine of 25 years,” Alvarez told the group. “I retired in the year 2001. Back in 1987, I was awarded the Congressional [sic] Medal of Honor. I got wounded many times by the same guy. I’m still around.” The words were digitally recorded and later transcribed by the FBI.

As you'll recall, Mr. Alvarez never actually served in any branch of the armed forces and of course, he never received the Medal of Honor. But those claims put him in violation of the 2005 Stolen Valor Act, which makes it a crime to make false statements about military service, or decorations received. And, the water board member didn't exactly help himself by making the same assertion on at least one other occasion.

After he was indicted by federal prosecutors, Mr. Alvarez's attorney offered a rather interesting defense. They tried to convince Federal District Judge R. Gary Klausner that Alvarez's false claim was actually protected speech, under the First Amendment. In other words, Mr. Alvarez had the constitutional right to lie and lie again.

Judge Klausner didn't buy that argument. As Air Force Times reports:

While simply classifying speech as “political” does not give a defendant 1st Amendment protections, U.S. District Judge R. Gary Klausner wrote in his April denial of Alvarez’s motion to dismiss, Alvarez’s statement “was not political in nature” ... and was a “false statement of fact” that did not merit 1st Amendment protection.

With is novel defense in tatters, Alverez decided to cop a plea. On 30 April, he agreed to a deal that would give him probation and a fine for one misdemeanor violation of the Stolen Valor Act. Mr. Alvarez entered his guilty plea in federal court on Monday. Under terms of the plea agreement, Alvarez can appeal the earlier denial of the First Amendment challenge, but not the sentence that he will receive.

A sentencing date for Xavier Alvarez has not been set. Judge Klausner has the option of accepting the prosecutor's punishment recommendations, or impose a tougher sentence, including jail time.

As for his political future, Alvarez has been censured--and his activities limited--by fellow board members, for matters unrelated to his Medal of Honor charade. But he's not up for re-election until 2010. The manager of Alvarez's water system told the Times that the "only people who can do anything about this are the people who put him in office."

Recall, anyone?

It's also worth noting that Mr. Alvarez's political patron is a key supporter of Barack Obama, though she's been careful to distance herself from the disgraced water board member.

We'll be waiting to see what sort of sentence Judge Klausner imposes on Mr. Alvarez. From our perspective, he deserves to go to jail, despite the misdemeanor charge. When the Medal of Honor controversy surfaced, the Modesto Bee did some checking and discovered that Alvarez has a long history as a military fraud. For his unrepentant behavior, Alvarez deserves a few months in the klink.

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