The following question presents a purely hypothetical case. Neither Mr. Wirth nor Ms. Wary are real persons. Damian Williams is, however, the current U.S. Attorney for the Southern District of New York. The events described herein are purely fictitious.
Jason Wirth is a sixty-six-year-old single man. He has been divorced three times and has one adult daughter. He lives on the lower East Side of Manhattan, in a one-bedroom apartment on First Avenue and 12th street. On or about December 31, 2020, Mr. Wirth posted a profile on the site “Our Time,” which is a dating site catering to people over fifty who are, in the words of the site, “looking for long-term, stable relationships (and hopefully marriage) that are focused on mutual respect and the sharing of one-another’s lives.” In his profile, Mr. Wirth falsely claimed that he had attended Oxford University—a very prestigious university in England. He also falsely claimed that he had received the Congressional Medal of Honor.
Ms. Mable Wary is a seventy-three-year-old widow who lives in a penthouse apartment on Central Park West, just north of the Museum of Natural History. Ms. Wary is a member of the renowned Wary family of New York. She is the daughter of the late Maximillian Wary, the wealthy investment banker, and the niece of the late Conrad Wary, the former Senator from New York.
On or about January 5, 2021, Ms. Wary saw Mr. Wirth’s profile on “Our Time” and decided to contact him through the website. Subsequent to that contact, she spoke over the phone to Mr. Wirth three times. Then, on or about January 23, 2021, Ms. Wary invited Mr. Wirth to have afternoon tea with her in the sitting room of her penthouse apartment, overlooking Manhattan’s Central Park. Both parties understood this to be a “date.” After this date, Ms. Wary was impressed enough with Mr. Wirth to make plans to invite him to her vacation home on Fisher Island, a resort community off the coast of Florida that boasts the highest per-capita income of any place in America. This date was scheduled to take place from February 11 through February 14, 2022.
Before extending that invitation, however, Ms. Wary hired a private investigator to run a thorough background check on Mr. Wirth. That investigation revealed Mr. Wirth had never attended Oxford University. Nor had he been in the United States military or won the Congressional Medal of Honor.
Ms. Wary promptly contacted the website “Our Time,” which immediately removed Mr. Wirth’s profile on the grounds that he had violated its terms of service which prohibit lying. But Ms. Wary was not satisfied that justice had been done. Although she is seventy-three and slightly forgetful, Ms. Wary nonetheless remembered reading something about a man in California named Xavier Alvarez who was prosecuted by the federal government some years ago for falsely claiming that he had won the Congressional Medal of Honor.
Ms. Wary thinks it is very bad for anyone to lie about anything—and especially bad to lie about something like having been awarded a prestigious military medal. She also understands how federal prosecutions work. So, she called Damian Williams, who is currently the United States
District Attorney for the Southern District of New York. Mr. Williams is responsible for bringing federal criminal charges against anyone who has violated federal law in the Southern District of New York, which includes all of Manhattan. Ms. Wary wants Mr. Wirth to be prosecuted by the federal government for lying about having received the Congressional Medal of Honor.
Mr. Williams just assumed office on January 16, and he is swamped with work. Mr. Williams therefore has asked you to answer four specific questions regarding this matter, in a memo to her of no more than five hundred words:
First, based on the current federal law regarding lying about having won military medals, what must the federal government prove to be able to successfully prosecute Mr. Wirth?
Second, how does what the government must now prove differ from what the government needed to prove when Mr. Alvarez was prosecuted?
Third, in your opinion, could Mr. Wirth be prosecuted successfully under thecurrentfederal law? This is a very important question. Here, Mr. Williams is looking for some good analysis of the law from you.
Fourth, in your opinion, was the Supreme Court case ofU.S. v. Alvarez, which led to the change in federal law regarding this issue, correctly decided? Obviously, this particular question is not germane to the question of whether Mr. Wirth can be prosecuted under the current federal law. But Mr. Williams is nonetheless interested in your considered opinion regarding the case ofU.S. v. Alvarez