ALISON ST JOHN (Host): You’re listening to These Days. I’m Alison St John in for Maureen Cavanaugh. However hard it is to get a job these days, lying on your resume is not a good idea, even if it seems like that might be the only way you'll ever cut through the competition. Our legal analyst Dan Eaton specializes in employment law and there have been several cases recently that raise interesting questions about the legal ramifications of lying. So, Dan, thanks for joining us.
DAN EATON (Attorney/KPBS Legal Analyst): Sure, Alison, good to see you.
ST JOHN: And remember that you can join us if you have a burning question or a comment about this. The number is 888-895-5727. Now the first case that drew your attention to this topic, Dan, was not a little white lie. It was a gentleman who claimed he’d won a Congressional Medal of Honor when, in fact, he’d never even served a day in the military. And this case has caused a bit of a stir here in San Diego where we’ve got a lot of people in the military who are very interested in upholding the integrity of military medals. So who was this man and what was he originally convicted of?
EATON: Alison, this is about the Stolen Valor Act, and this has really gotten a lot of attention. It was about the constitutionality of it. This is what basically happened. These are the facts. Xavier Alvarez was a newly elected member of a water district that handles Pomona and Claremont, among other cities, called the Three Valleys Municipal Water District. And this was in 2007. He made a statement to a joint meeting with a neighboring water district that got him into a little hot water, if you’ll pardon the pun. What he said – I couldn’t resist. What he said was, quote, in introducing himself, he said, quote, I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around. Closed quote. In fact, as you said in the intro, Alison, he had never served a day in the Marines, he’d never received the Congressional Medal of Honor or any other honor, and as a court of appeal put it, quote, in short, with the exception of ‘I’m still around,’ his self-introduction was nothing but a series of bizarre lies, closed quote. The court of appeals went on to say that this man made a hobby of lying about himself, including telling one woman who later reported the lie to the FBI that he had actually won the Medal of Honor for rescuing the American ambassador during the Iranian hostage crisis and how was he wounded in that? He says he was wounded when he was shot in the back returning to the embassy to try to rescue the American flag. This was somebody who did not tell just little lies, this one, if he said he was going to lie, he was going to go for the gusto.
ST JOHN: Okay, so, you know, he ended up running afoul of the law.
EATON: He did.
ST JOHN: And what – what’s the retribution for lies of that scale?
EATON: Well, actually the Stolen Valor Act, which was passed by Congress in 2005, made it a lie – made it a federal crime, rather, to falsely represent oneself verbally or in writing about having been awarded any decoration or medal authorized by Congress. In fact, there were fines and imprisonment of up to one year for certain kinds of lies about medals. For example, lies concerning the Congressional Medal of Honor, the Purple Heart, the Navy Cross, and certain other really incredibly special honors. And, of course, Mr. Alvarez’s lie was about the Congressional Medal of Honor.
ST JOHN: So the federal trial court convicted him, you know, probably much to the relief of many people who look at this as eroding the integrity of…
EATON: Right.
ST JOHN: …these medals, you know.
EATON: That’s right.
ST JOHN: But how did he then get his conviction overturned?
EATON: Well, what he did actually, Alison, it’s important to understand is that he pled guilty actually but he pled guilty only after the court declined to dismiss the charges on the grounds that the Stolen Valor Act was unconstitutional. He pled guilty and then he said but I’m going to preserve my right—it was a conditional plea—to appeal the conviction on the grounds that the act under which I was convicted was unconstitutional. He was then – they then sentenced him to three years of probation, a $5,000 fine, and 416 hours of community service, which he ended up serving actually in a veterans hospital, according to the Three Valleys Municipal Water District website. But anyway, what happened was he did challenge the constitutionality of the act and the court of appeals ultimately had to address that issue.
ST JOHN: And they came down on the side of, hey, he’s got a right of free speech.
EATON: He’s got a right of free speech.
ST JOHN: What was the argument there?
EATON: It was a two-to-one decision by a three-member court of appeals panel of the Ninth Circuit who said, no, the trial court got it wrong. In fact, the Stolen Valor Act, said the court of appeals, is unconstitutional. And the reason – the critical question, Alison, you have to understand is that lies are not automatically excluded from the protection of the First Amendment of the U.S. Constitution according, at least, to the majority. The Stolen Valor Act, they said, was an unconstitutional content-based restriction on free speech that could not be justified by a narrowly tailored restriction on free speech, which is the test it had to muster. In fact, according to the majority, Congress—and this was very provocative, it was in the opening paragraphs of the opinion—Congress could no longer – no more make it a federal crime to lie about military medals than it could make it a federal crime to lie to your mother about smoking or being a virgin or speeding on the freeway or, for that matter, to lie about your height, weight, age or financial status on match.com or Facebook. Said the majority, quote, the sad fact is most people lie about some aspect of their lives from time to time, closed quote. Some of those lies, said the court of appeal majority, are beyond the reach of the government given the restrictions that are placed on government regulations by the First Amendment.
ST JOHN: So is this the end of the Stolen Valor Act? Or would there be situations where it still applies?
EATON: Well, no, there are a few situations. First of all, the Stolen Valor Act, at least for the states covered by the Ninth Circuit, California, Arizona and Nevada and certain other jurisdictions, but the fact is that it only applies in the states covered by the Ninth Circuit. It also applies, however, to the states – to Colorado, actually, because a federal court there also struck down the Stolen Valor Act. So the fact is that it still remains alive at least in those states where the federal courts have not yet weighed in.
ST JOHN: Now there was one judge on that panel who disagreed with the majority. What was his argument? That the lie was constitutionally protected, he disagreed with that.
EATON: That it was not constitutionally protected of course.
ST JOHN: Yeah.
EATON: He said that the Stolen Valor Act was appropriate. Look, he agreed, Judge Jay Bybee, who dissented in the case, agreed with the majority that the Stolen Valor Act doesn’t pass the kind of high level or strict scrutiny that is required if it’s a content-based restriction on protected speech. But Judge Bybee said this wasn’t protected speech under past Supreme Court decisions. In fact, it was perfectly appropriate for Congress to punish it to preserve the integrity of these medals. What Judge Bybee said was you don’t even have to show any harm. You don’t even have to show any harm from the lie but even if you did, said Judge Bybee, there is harm from this kind of speech. And what is that harm, said Judge Bybee? He said that, look, such false representations not only dishonor the decorations and the medals themselves but dilute the select group of those who have earned the nation’s gratitude for their valor. Every nation needs to honor heroes to thank them for their selflessness and to hold them out as an example worthy of emulation. The harm flowing from those who have crowned themselves unworthily is surely self evident, closed quote.
ST JOHN: Well, I guess that’s the question in a lot of people’s minds, is the fact that the majority decided that he had the right to lie like this. Does this – what does this mean for people in future who go to a job and say, hey, I was in the military and won all these awards.
EATON: Well, what the majority said, at least if it’s in one of the states covered by the Ninth Circuit, is the Stolen Valor Act has no force and effect. It’s unconstitutional. What they said, what the majority said, and it’s worth looking at this a little bit more, is that the purposes that the government gave for the act are simply not valid. For example, they said there were other ways that you could – that are less restrictive of the constitutional right that you could accomplish without making this a federal crime. For example, more speech, publishing and publicizing the names of valid recipients and also publicizing the names of those who are illegitimate claimants, as well as educational programs and also making it a federal crime, for example, to make these lies to secure a benefit. But all this act did was it made it a crime simply to utter the false words and that, the majority said, was unconstitutional.
ST JOHN: Okay, so this is a three-person panel of the Ninth Circuit. Is this an example? Is the ultimate ruling an example of a liberal Ninth Circuit?
EATON: Yeah, because you often hear this about the Ninth Circuit being a rogue court of appeals that is often reversed by the Supreme Court, which is relatively conservative. But, in fact, the three judges on the panel were all appointed, Alison, by presidents named Bush. Both the writer of the majority and the writer of the dissent were appointed by George W. Bush, and the judge who joined the majority opinion was appointed by the most recent President Bush’s father, George H.W. Bush. So this – you can’t just write this off as some sort of rogue opinion of a liberal Ninth Circuit. That said, the U.S. Supreme Court often gets their dander up a little bit when federal statutes are invalidated as unconstitutional. So the Supreme Court may very well take a look at this even if a broader panel of the Ninth Circuit does not.
ST JOHN: Umm-hmm. So what’s happened to Xavier Alvarez now? Is he scot free?
EATON: It’s kind of – Well, you know, it’s kind of funny. We talked about this on the phone. In an August 19th, 2010 announcement on the Three Valleys Water District website, one learned that there was an announcement that this is a former member of the water district.
ST JOHN: Uh-huh.
EATON: And they actually underlined that word. The announcement expressed some disappointment at the ruling of the court but said, quote, Alvarez was previously removed from the Three Valleys Municipal Water District board in October 2009, and here’s the kicker, continues to serve a five-year jail term in state prison for an unrelated felony conviction for insurance fraud. As a result of this felony conviction, Alvarez is ineligible to hold any form of public or elected office for life, closed quote. In other words, the Three Valleys Municipal Water District was saying get out and stay out. So there’s a…
ST JOHN: So he was a chronic liar. I mean…
EATON: Oh, yeah. Among other lies, this wasn’t just limited to military, he also lied about having secretly been married to a military starlet and having played professional hockey for the Detroit Redwings. This guy really was living in a land of make believe as the trial court put it.
ST JOHN: Well, before we just assume though that it’s fine to go ahead and lie about stuff, there’s another case that you – caught your attention, which really paints the opposite picture and sort of a cautionary tale of why it’s not a good idea to lie on your resume, and this is a nurse in Alaska. Tell us about this one.
EATON: Well, there are money consequences and that’s true, by the way, generally if you lie on a resume, even if you can’t go to federal prison, it’s never a good idea to lie on your resume. But in this particular case that you were talking about, a woman by the – an Alaska woman by the name of Becky Nadine Hunter, who went by no fewer than 12 other aliases, according to the…
ST JOHN: Uh-oh.
EATON: …caption of this opinion…
ST JOHN: Another chronic liar.
EATON: It’s really kind of funny. This was a case that was decided on August 20th, 2010, also by the Ninth Circuit, by the way. Ms. Hunter moved to Alaska in 1998, stole the credentials – stole the identity of a registered nurse, used it to get a job with a Fairbanks Alaska area school district as a school nurse, and she received about $12,500 in wages and benefits. She was later fired when they uncovered the fraud but she was undeterred. She went ahead and applied to the Department of Labor and also got a job with that department and got about $5500.00 worth of wages and compen – wages and benefits. Finally, the FBI uncovered a whole series of lies and she was brought to justice in federal court.
ST JOHN: So and the justice in this case cost her a pretty penny, right?
EATON: It was, yeah. The issue here was that she said, okay, look, all right, yeah, I lied. You caught me, all right, and obviously I was convicted but I shouldn’t have to pay back the full roughly $18,000 that I received from the school district and from the Department of Labor. Under the mandatory Victims Restitution Act, which generally requires repayment if you’re convicted of, among other things, mail fraud, which she was, you have to restore that to the victims because that was money taken as a result of your fraud. She said, no, not the full $18,000. There ought to be a reduction for the value of the services that I provided, at least those that didn’t require a license. And the Ninth Circuit said, no, that’s not going to work. You’re going to have to pay back the full amount. And the reason for that is, the court said, quote, if Hunter had not acted unlawfully, her victims would not have paid any of these wages or would have paid them for valuable services for a real qualified nurse, closed quote. The court pointed to other areas where the unlicensed provision of services has no legal value.
ST JOHN: Okay, so the moral of this story is watch out because you could forfeit all the salary of a job that you’ve lied to get.
EATON: That’s right, all the wages and benefits. And obviously she fought this. This wasn’t the first appeal she had, but this is going to cost her. And the mandatory Victims Restitution Act, which is also a federal law, requires you to cough up that money.
ST JOHN: However, there are people who – little white lies, you know, I mean, where do we draw the line here? Because I think there are some lies that you say are not going to get you into trouble on your resume.
EATON: Well, they’ll get you into trouble, all right, they just won’t land you in federal prison and may not cost you a lot of money. But they definitely have civil consequences.
ST JOHN: So where’s this line that…
EATON: Well, it’s kind of funny, I mean, the line is don’t lie on your resume and…
ST JOHN: Thank you.
EATON: …and that you’re likely in this age of the internet to be found out. It’s too easy. Employers routinely look at Facebook and the internet and see prospective applicants. But some of the lies are really bizarre. As we were talking about off air, a recent survey suggested that people tell some really incredible lies including using someone else’s photo on a resume, lying about their membership in the high IQ society, Mensa, and here’s my personal favorite, lying about their membership in the Kennedy family. So these kinds of things, these lies, can catch up to you, particularly if you’re later fired and you want to sue. Because if you’re later fired and you want to sue and they find out about this, it may limit your ability to recover damages from your employer.
ST JOHN: And it is, in fact, getting easier and easier to discover if somebody is lying because there’s so many sources of ways of checking up on people.
EATON: The internet is the ultimate lie detector test in this area, Alison, and people really need to pay attention to that. It just is not worth it. There are too many very public examples of how lies catch up to people.
ST JOHN: I mean, there’s been some very, very high profile lying and perjury is something which the courts take a very dim view of. We’ve got a situation right now where Roger Clemens is in court claiming that he did not take performance enhancing drugs. And in some cases, you know, the impression that we get is that the courts think lying to the court is actually a bigger sin than the thing you’re being convicted of or you’re being charged with anyway.
EATON: Well, Alison, of course the Roger Clemens case, he’s vigorously fighting these charges. I mean, he’s, of course, the baseball great and so forth and he has been charged by the federal government not with using these performance enhancing drugs that which may keep him out of the Baseball Hall of Fame—although I’ll leave that to a different kind of show—but he is accused of lying to a congressional investigation committee when he categorically denied using anabolic steroids and human growth hormone even though he was seated very close to his former trainer, Brian McNamee, who said, no, yes, he did, and I gave them to him. And so the Mitchell Report, which was done to investigate Major League Baseball, concluded that Roger Clemens was lying and this led, ultimately, to a criminal indictment that he is now facing. He has now pled not guilty in really recent days but we’ll have to see how that plays out. And we won’t hear it from Roger Clemens or his attorney because the trial judge in this case, it’s being tried in Washington, D.C., has issued a gag order on all participants. So it’s going to be tried in federal court rather than the court of public opinion, and that’s as it should be.
ST JOHN: 888-895-5727 is the number if you have a question here for Dan Eaton talking about gray areas about lying where the law comes down heavy. And, you know, in the case of sports, Dan, it does feel like that the sports culture is changing. What role do you think the law and the courts are taking in terms of shifting the culture in sports to where you’ve got to come clean?
EATON: They’re not differentiating, Alison. The fact is that when you are dealing with sports, I mean, Roger Clemens is not the first or even the second high profile athlete to be charged in federal court with these crimes. Obviously, we have homerun slugger Barry Bonds who is facing trial in March for alleged lies and Marion Jones, the great track star, who also has – who also had to admit and plead guilty to having lied to investigators and so forth in connection with her use of these drugs. This is very, very serious business. And what the U.S. Attorney said in announcing the particular matter of his – the particular indictment for Mr. Clemens is, quote, our government cannot function if witnesses are not held accountable for false statements made before Congress. Today, the message is clear. If a witness makes a choice to ignore his or her obligation to testify honestly, there will be consequences, closed quote. That means whether you’re talking about an investigation of sports or you’re talking about an investigation of a politician or any other field or endeavor.
ST JOHN: So now in the case of Roger Clemens, and, of course, we don’t know the outcome of this case…
EATON: We don’t.
ST JOHN: …because he is innocent until proven guilty.
EATON: He is, that’s right.
ST JOHN: Yes. But could he have chosen not to testify at all?
EATON: He could – Well, he could’ve because he testified voluntarily not pursuant to subpoena and in – which is a compelled attendance. He said, no, I’m willing to testify, and he did in February of 2008. He could’ve taken, though, a different tack even had he chosen to go ahead and testify, which is a tack that Mark McGwire took, the – of course, the St. Louis Cardinals homerun king, who said he didn’t want to talk about the past. So he didn’t say concretely, no, I didn’t use them. We now know, in January of 2010, he came clean, so to speak, and said, yes, I did use them. But Mark McGwire took a different tack and he took a tack that kept him away from federal prosecution going forward. And, of course, now he’s the hitting coach for the St. Louis Cardinals. So, really, you have to think about these things very carefully. Lies really just don’t pay.
ST JOHN: And certainly in the legal system, perjury is one of the worst sins, isn’t it?
EATON: It is. But we’ll have to see what happens. Ultimately, Roger Clemens, if he is convicted and, of course, innocent until proven guilty, could go away, theoretically, for a number of years but more likely a number of months. And that would be a really tragic end to what was truly a great and inspiring baseball career.
ST JOHN: And, in general then, you’ve given us some pretty good insight about the dangers of lying on your resume, however much you want a job.
EATON: Absolutely right. And so just tell the truth and you’ll stay out of federal prison. Don’t take a chance that the law under which you’re convicted is later going to be held unconstitutional.
ST JOHN: Okay, Dan, thanks so much for being with us.
EATON: All right, thank you, Alison.
ST JOHN: Okay, stay with us. Coming up in the next hour of These Days, a new production at the La Jolla Playhouse, a world premiere of the life and times of Charlie Chaplin. That’s coming up right after the news.
