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Man convicted of falsely claiming MoH

It was a novel argument: freedom of speech protects falsely claiming an award of the Medal of Honor.

It didn’t work. And on Monday, Xavier Alvarez of Pomona, Calif., pleaded guilty to violating the 2005 Stolen Valor Act. In doing so, he acknowledged that he had falsely claimed to have been awarded the nation’s highest decoration for valor — and, in fact, had never served in the U.S. military.

Alvarez, 50, faces a maximum penalty of one year in prison, one year of supervised release and a $100,000 fine for the misdemeanor offense. But the government has recommended that he serve a term of probation and possibly be levied a smaller fine, according to Craig Missakian, the U.S. attorney who prosecuted the case.

Alvarez, as a member of the Three Valleys Water Board in Claremont, Calif., was punished for statements made at a July 2007 meeting of a neighboring water board. Alvarez was asked if he wanted to introduce himself.

“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.

Under terms of what is called a conditional plea agreement, Alvarez cannot appeal the sentence to be imposed but retains the right to appeal the court’s earlier denial of his 1st Amendment challenge to the Stolen Valor Act, according to Missakian.

Alvarez had initially argued, in essence, that his false statement was a political statement that was protected under the 1st Amendment. 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.

Missakian agreed.

“The 1st Amendment argument really turned the 1st Amendment on its head,” Missakian said Tuesday. “The 1st Amendment was meant to protect the marketplace of ideas and the search for truth. It was not put there to protect politicians who lie to the voters.”

While some had questioned his decision to file the case, Missakian said it was worth it.

“I thought it was an important prosecution,” Missakian said. “I feel that we as a country have an obligation to stand up for our Medal of Honor winners, and protect the honor that they have earned. I viewed this prosecution as a small effort to do that.”

News accounts of widespread medals fraud prompted passage of the Stolen Valor Act, which makes it a federal crime to falsely claim the award of any military medal.

It was formerly a crime to wear, sell or manufacture the Medal of Honor, but it was not against the law to falsely claim the award of that or any other medal.

The plea agreement states that by pleading guilty, the defendant may be giving up the right to hold public office. But given that the violation is a misdemeanor, Missakian said, “My guess is, probably not.”

And so far, Alvarez still holds his position on the Three Valleys board, according to Richard Hansen, the district’s general manager — even though Alvarez has been censured and had his participation in board activities limited over separate concerns, Hansen said.

“The only people who can do anything about this are the people who put him in office,” Hansen said Tuesday. “So it would take the people in South Pomona to start a recall process.”

Four of the seven board positions are up for election in November, Hansen said, but Alvarez does not face re-election until November 2010.

No board members of the board could be reached for comment Tuesday. Alvarez’s cell phone, according to the phone company recording, had either been “changed, disconnected or is no longer in service.”

DISCUSS: Is this a First Amendment issue?