Francisco Ioanis sworn in as Pohnpei’s Lt. Governor

By Bill Jaynes

The Kaselehlie Press

January 27, 2023

Pohnpei—After reviewing the certification by Pohnpei’s Election Commissioner of the runoff election for Lt. Governor between Christina Elnei and Francisco L. Ioanis, Pohnpei’s Governor Reed B. Oliver today issued a declaration declaring Francisco L. Ioanis to be the winner. Ioanis garnered 4,469 votes for 52.29 percent of the vote while Christina Elnei had 4078 votes, or 47.71 percent. Ioanis was sworn into office shortly thereafter. He took his oath of office from his hospital bed where he is currently being treated.

The special election to elect a Lt. Governor to fill the remainder of the term vacated by the untimely passing of Feliciano Perman was held on December 20, 2022. Christina Elnei was the top vote getter in that election with 3,241 votes. Ioanis had 3,019. Neither had a majority of the votes from among the candidates.

Election Commissioner Heinrick Stevenson announced that because no candidate had garnered 50 percent plus one of the votes, a special election would need to be held. Elnei filed suit at Pohnpei State Supreme Court claiming that the constitution mandates special elections only for general elections and not for special elections.

On January 10, 2023, Associate Justice Robert Nakasone a former colleague of Ioanis heard the arguments in a closed door hearing from which the Kaselehlie Press reporter was barred. He ruled that a special election was required under the constitution and ordered that the special election continue as scheduled by the Office of the Election Commissioner on January 17.

On January 13, Elnei’s attorney filed a motion for reconsideration alleging that the Court had misunderstood the relief sought in her petition for a declaratory judgment. The Court’s ruling seemed to be based on an understanding that Elnei was asking for the Court to declare her to be the winner and to be seated as Lt. Governor. In fact, the motion said, Elnei was asking for the Court to declare that a runoff election is not required by law for special elections. At press time, the court had not responded to the motion for reconsideration.

Before the election, Elnei’s attorney said that she intended to pursue the court filing no matter the outcome of the election in order to clear up the question once and for all regarding whether runoff elections are required for special elections.

The court wrote, “Sharma was able to set up and operate MISR and register 103 ineligible vessels and collect registration fees from their owners because of Secretary of Transportation, Communication and Infrastructure (“TC&I’’) Lukner Weilbacher’s October 2, 2015 letter of intent that was written to authorize MISR’s operation and which Sharma used to implement the MISR scheme.”

The FSM Government did not charge the defendants with Theft. They were more specific by saying that the theft was of property belonging to the Government. “the prosecution therefore had to prove in this case that the defendants conspired to commit theft of national government property; in other words, that the money collected by MISR in its admittedly illegal and unlawful ship registration scheme was national government property. The prosecution, however, has manifestly proven that those funds were not ever national government property. The prosecution proved that the FSM was not entitled to any of the funds Sharma collected because none of the ships that paid MISR registration fees could lawfully be registered to fly the FSM flag. The FSM national government therefore could not lawfully collect or possess any of those fees.”

The Court said that the taking of MISR ship registry fees was not the theft of government property but was theft of the shipowner’s property. “The FSM was well aware that it was not entitled to any of those funds. It even rejected a $100,000 check that was part of those funds because it was not entitled to those funds.”

The court declined to say that no theft or conspiracy existed. It said that the theft was not a theft of government property. The ruling said that if the FSM National government had instead characterized the property as that of the 108 shipowners, the court would not have been deprived of jurisdiction in the matter because the thefts were carried out in the national government’s name and with a claim of authority from the government, which would have made it a crime that is under the Supreme Court’s jurisdiction.

“Accordingly, since the prosecution cannot prove that the object of the theft was national government property, the court must acquit Weilbacher on the charge in Count 121 and Jano of the charge in Count 122,” the ruling said. He suggested that the prosecution might be advised to file a “superseding information for the charges against Sharma so that it does not run into this same problem when prosecuting him.”

On the charge of Conspiracy to Commit Money Laundering, the court convicted Jano saying, “A conspiracy to commit money laundering charge does not require that each conspirator actually possess proceeds of the serious crime to establish criminal liability for the conspiracy - Sharma’s undisputed possession of the proceeds would be more than enough to meet the element of an overt act by one of the co-conspirators to further the conspiracy. (The creation of MISR would also suffice.)”

The Court ruled that the fact that Jano possessed a $100,000 check from MISR that he attempted to give to the FSM as the FSM’s “share” of the fraudulent ship registry fees, even after he had been told that the MISR scheme was illegal, eliminated his defense that he made a complete and voluntary renunciation of the scheme and withdrew. By later presenting the check to the FSM, he was still acting in furtherance of the conspiracy.

“If the FSM had accepted the $100,000 payment by check, Sharma could then argue that the FSM had retroactively ratified his MISR activities thus not only validating MISR’s previous unlawful acts and activities, but also making the revenue, the money, MISR generated “clean.” The FSM was probably wise to reject the $100,000 check,” the court ruled.

Count number 485 in the charges was that Weilbacher had violated the Conflict of Interest statute by willingly participating in the scheme, knowing that while MISR operated in Pohnpei, his son would continue to receive a salary from MISR for operating the company’s office. The court found that Weilbacher was guilty of this charge.

However, the charge that Weilbacher exerted special influence stemming from his position at TC&I in trade for MISR continuing to employ his son could not be proven, and the court found Weilbacher innocent of that charge.

The Court will sentence Jano and Weilbacher at a hearing in March.