Cite as FSM v. Jorg, 1 FSM Intrm. 378 ( Pon. 1983)

[1 FSM Intrm. 378]








Before Edward C. King
Chief Justice
Ponape, Caroline Islands 96941
December 9, 1983


For the Plaintiff: Carl Ullman
Assistant Attorney General
Federated States of Micronesia
Ponape, Caroline Islands 96941
For the Defendant: Loretta Faymonville
Public Defender
P.O. Box 238
Ponape, Caroline Islands 96941



An alien must willfully fail to depart the Federated States of Micronesia upon expiration of entry authorization to be guilty of a violation of 50 F.S.M.C. 112. Knowledge of the requirement to depart coupled with failure to depart is not enough. There must be an element of voluntariness or purposefulness in the noncitizen's conduct, which will generally require showing a reasonable opportunity to depart, voluntarily rejected, without some justification for the rejection beyond mere personal preferences. FSM v. Jorg, 1 FSM Intrm. 378, 384 (Pon. 1983).


The FSM Supreme Court and the Federated States of Micronesia must not be lured into the role of mediator between visitors and their nations of citizenship. Only in the rarest of circumstances, if ever, would the court second-guess and scrutinize the conditions which other nations place upon offers of funds to their own citizens to assist those persons to comply with FSM immigration laws. FSM v. Jorg, 1 FSM Intrm. 378, 385-86 (Pon. 1983).

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Defendant Peter Jorg, a citizen of Austria, has remained in the Federated States of Micronesia some seven months after expiration of his entry authorization. The question is whether he is "willfully" failing to depart so that his continued presence here constitutes criminal conduct under 50 F.S.M.C. 112.

Factual Background

Jorg and his fiancee, Heidemarie Eggersmeier, a citizen of West Germany, arrived in Ponape on a February 16, 1983 Air Nauru flight from Manila. Their plan was to rendezvous with a friend from the Marshall Islands, who was to have come here by sailboat. They were all to sail from Ponape to Majuro on the sailboat. Jorg and Eggersmeier were then intending eventually to fly from Majuro to the United States, with the that they might obtain employment there.

The plan immediately went awry. Upon arrival at the Ponape Airport, Jorg and Eggersmeier were advised by FSM Immigration Officer Lucio Remoket that arriving visitors must have with them tickets for their departure from the Federated States of Micronesia.

Since they intended to depart from the Federated states of Micronesia by private sailboat, the couple had no public transport tickets for their departure. This problem was resolved by an agreement that the couple would immediately acquire air transportation tickets for passage from the Federated States of Micronesia.

They fulfilled this requirement the next day by purchasing two Air Nauru tickets for flights from Ponape to Nauru. They were granted authorization to remain within the Federated States of Micronesia until

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March 15, 1983. There is no evidence that this authorization was ever extended.

Unfortunately, the former friend from the Marshall Islands never appeared with the sailboat in Ponape. Jorg and Eggersmeier were forced to seek alternate means of departure from the Federated States of Micronesia. A couple from Sweden happened to be on Ponape at the time. Jorg repaired their boat's motor and it was agreed that Jorg and Eggersmeier could sail with the couple to Majuro for $800 per person. Early in March, Jorg and Eggersmeier cashed in their Air Nauru tickets, paid $1,600 to the Swedish couple, and they all cast off for Majuro.

This is not the end of their story however. Shortly after departure from Ponape, the boat's motor again began malfunctioning. This forced them to divert their boat to Kosrae for repairs.

Sometime after their arrival in Kosrae and while they were still awaiting parts and repairs the next crucial incident occurred. For reasons unexplained in the testimony, the Swedish woman became angered one evening, threw overboard the belongings of Jorg and Eggersmeier, and decreed that Jorg and his fiancee would not be permitted to travel farther in the boat. The Swedish couple also refused to refund the $1,600 on the grounds that the money had already been spent on new engine parts. The boat left shortly thereafter, abandoning Jorg and Eggersmeier on Kosrae.

For several months they remained on Kosrae, without money to buy a ticket to leave. They relied principally on the generosity of individual Kosraeans for their food and housing.

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Finally, a man who befriended them purchased plane tickets for their travel back to Ponape.

They arrived here on August 16, still dependent on others for the necessities of life. Most of the help has been provided by the Federated States of Micronesia which has furnished housing and food for the impecunious travelers. The Federated States of Micronesia is billing Jorg for these provisions and he acknowledges that his indebtedness to the Federated States of Micronesia now exceeds $1,000. He promises to pay eventually but is unable to do so now.

Throughout recent months Federated States of Micronesia immigration officials have been working with the nations of citizenship of Jorg and Eggersmeier, Austria and West Germany, respectively. Eggersmeier eventually received a loan from the West German government enabling her to purchase a plane ticket. She has departed from the Federated States of Micronesia.

The Republic of Austria is tendering funds to Jorg for his return travel to Austria. Before issuing an airline ticket to him, however, the Austrian Embassy demands that he sign a promissory note agreeing to repay within 30 days the $1,226 price of the ticket to Vienna.

Jorg insists that it would be impossible for him to repay the $1,226 loan within 30 days and he refuses to sign the note. Meanwhile he has made arrangements with yet another boat owner, this one from West Germany, whose boat is awaiting repair. The captain of that boat confirms their agreement that Jorg will sail with that boat to Manila after repairs are completed within a month or so. The Federated States of Micronesia, unwilling to wait longer, presses forward with its charge

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that, by refusing to obtain the Austrian funds, Jorg is "willfully and unlawfully" remaining after expiration of his entry authorization in violation of 50 F.S.M.C. 112.

Meaning of "Willfully"

Under 50 F.S.M.C. 112, a noncitizen of the Federated States of Micronesia who "remains willfully and unlawfully after expiration or revocation of his entry authorization" may be subjected to two years of imprisonment, fined up to $10,000 and deported.

A. Federated States of Micronesia Sources

There are few clues within the law here as to the meaning of "willfully." The Immigration Act offers no definition. The word "willfully" was not discussed in any committee report or floor discussion reflected in the Congress Journal. A comparison of § 112 with the former Trust Territory immigration law reveals that the penalty clause was drawn in great part from that earlier Trust Territory provision, 53 TTC § 62. While this suggests the Congress was adopting "willfully" with the meaning ascribed to it under Trust Territory law, we have found no Trust Territory High Court interpretation of the word. Finally, this Court has not previously had occasion to consider the meaning of the word "willfully."

B. Other Sources

In the absence of clear guidance from sources within the Federated States of Micronesia, we may look elsewhere for assistance in determining the meaning of willfully.

I have reviewed United States court decisions under statutes mandating certain actions and imposing criminal liability for willful

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failure to comply. These include cases Involving the Immigration and Nationality Act, 8 U.S.C.S. § 1252(e) 1 (willful failure of alien under deportation order to depart within six months or to make timely application for documents necessary to departure); the Internal Revenue Code, e.g., 26 U.S.C.S. §§ 7203 (willful failure to file return or pay tax) and 7204 (willful failure to furnish statement) 2; and the Interstate Commerce Act, 49 U.S.C.S. § 322(a) (willfully failing to comply with statutory or regulatory mandates). 3

However, none of these authorities are sufficiently persuasive, either for uniform results or as to mode of analysis, to warrant outright adoption or extended discussion here.

The imprecision of analysis and lack of uniformity in results in cases concerning "willful" failures to act is well illustrated in the tax cases most closely parallel to Jorg's current circumstance. Where taxpayers who could have borrowed funds to pay taxes, but did not, are prosecuted for willful failure to pay taxes, there is a split of authority. Compare United States v. Goodman, 190 F. Supp. 847, 856 (N.D. I11. 1961) ("I think it is obvious that there is no requirement that a person must borrow money or agree to an assignment of his fees in order to pay his income tax liabilities"), with United States v. Tucker, 686

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F.2d 230, 233 (5th Cir. 1982) ("This argument borders on the ridiculous.... A taxpayer is obligated to conduct his financial affairs in such a way that he has cash available to satisfy his tax obligation").

C. Application

Having completed review of the various guides available, we are still left to find our own way. I therefore return to the Act itself to form an analysis.

The Immigration Act commands the alien to depart the Federated States of Micronesia upon expiration of his entry authorization. He whose conduct is defined as criminal, is one who "willfully" fails to do so. By using the word "willfully," Congress demonstrated that it did not intend that a person, by reason of a bona fide misunderstanding of his obligations, physical or mental incapacity, or other factors beyond his control, should become a criminal by mere failure to measure up to the prescribed standard of conduct.

Thus, it is not enough for the government to show only knowledge of the requirement to depart and failure to depart. There must be an element of voluntariness or purposefulness in the non-citizen's failure to depart. In most instances, as in this case, this means in practical terms that the government must show that the non-citizen has had a reasonable opportunity to depart, which he has voluntarily rejected. Upon such a showing, the defendant will be convicted unless he can show some justification for rejecting the opportunity.

Applying these standards to this case, I find that, until the Austrian government tendered funds to him, Jorg had not voluntarily

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rejected or forgone any reasonable opportunity to depart. He had taken no steps or omitted any actions with knowledge that such steps or omissions would prevent compliance with the statutory mandate.

The government, however has shown that since late September or early October, funds have been available to Jorg from the Austrian government. Acceptance of those funds would provide the opportunity to depart.

The remaining and central question then is whether Jorg is justified in refusing to sign the promissory note tendered by his own nation as a condition to the provision of funds which would enable him to leave.

A hard look at the realities points toward the answer. The present situation borders on the absurd. An itinerant Austrian citizen is accepting food and housing from the Federated States of Micronesia, a small, new, relatively poor nation, while simultaneously refusing to accept travel funds from his own nation because he does not like the terms of his nation's loan offer. Jorg asks that we accept his reluctance to accept the demands of the Republic of Austria as valid justification for his continued failure to depart. In effect, he is asking that this Court and the Federated States of Micronesia intervene in his dealings with has own country by reviewing in detail Jorg's personal circumstances and the loan terms demanded by the Austrian government.

This Court and the Federated States of Micronesia must not be lured into the role of mediator between visitors and their nations of citizenship. Only in the rarest of circumstances, if ever, would the

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Court second-guess and scrutinize the conditions which other nations place upon offers of funds to their own citizens.

Even if I were willing to engage in this line of inquiry, the evidence would not justify a finding that the Austrian government is placing Jorg in an unfair or untenable position.

Except for Jorg's brief, conclusory testimony that he has no money or property, that he cannot receive assistance from his brother in Austria, and that the job market is bad in Austria, there as no evidence of Jorg's personal or family circumstances or of the Austrian economy. Consequently, we have no precise information as to when, if ever, the Austrian government might reasonably expect to receive repayment from Jorg and what terms that government might reasonably impose upon him in exchange for its loan of funds. These are matters more within the competence of the Austrian government to decide. It would be unworkable and improper for this Court to try to determine whether the Austrian government is taking a "reasonable" position under the circumstances and whether it is treating its own citizen properly. In any event, it does not seem unreasonable for that government, in loaning money to its citizen marooned on a Pacific Island, to insist that he agree to repay the money promptly upon his return to Vienna.

Jorg points out that under Austrian law debtors may be imprisoned for non-payment. The implication is that he may be imprisoned soon after his return to Austria if he signs the note. Yet, there is no evidence indicating the circumstances under which debtors are imprisoned, nor the frequency with which that occurs. Rather than assume that the Austrian government will insist that its desperate

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citizen sign a 30 day note, which he candidly says he cannot pay, and then promptly use that note as a basis for throwing him into the jail soon after his return, I see as more likely the possibility that the Austrian government is requiring the signing of a 30 day note simply to assure that it will be repaid promptly, if funds are available. If Jorg subsequently establishes that he in fact has no resources for repayment of the note within 30 days, the Republic of Austria, one hopes and trusts, will surely renegotiate the terms of payment.

Finally, there is no indication that Jorg himself has taken steps to obtain funds under any better terms fran the Austrian government or from any other source. For all that appears, he has merely rejected his own government's offer and continued to receive the housing and food being furnished him by the Federated States Of Micronesia government.

For all of these reasons, I conclude that Jorg does have a reasonable opportunity to depart from the Federated States of Micronesia and that the conditions imposed by the Austrian government upon their loan offer do not justify his refusal to accept the funds.

Jorg's reluctance to accept the funds from the Republic of Austria under the terms offered is understandable, as is his preference to depart by boat to Manila rather fly to Vienna. Those are mere personal preferences however. They do not rise to the level of justifications for failure to comply with the statutory mandate to depart. Jorg's focus on his own personal preferences rather than the statutory mandate amounts to a willful violation of the Act. He now remains in the Federated States of Micronesia willfully and unlawfully after expiration of his entry authorization in violation of 50 F.S.M.C. 112.

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The defendant here knows about the statutory mandate to depart. He has the opportunity to depart by accepting funds from his nation. He refuses to accept those funds because he does not want to become entangled with the Austrian government. Instead he prefers to await the anticipated departure of a boat in a month or two, knowing that the Federated States of Micronesia feels responsible to assure that food and housing will be available to him.

Jorg's personal preference is this situation is understandable, even reasonable. The law, however, requires that he respond to the statutory mandate to depart now, not to his personal preferences to linger awhile longer and depart by a more attractive means to a more preferred destination. His refusal to respond to the statutory mandate can only be seen as willful.

I therefore conclude that he is guilty of violating 50 F.S.M.C. 112. Sentencing will be on December 14 at 1:30 p.m.

So ordered the 9th day of December 1983.

/s/ Edward C. King

Chief Justice
Supreme Court of the Federated
States of Micronesia

Entered this 12th day of December 1983.

/s/ Emiliana J. Kihleng

Chief Clerk of Court



1. Heikkinen v. United States, 355 U.S. 273, 78 S. Ct. 299, 2 L. Ed. 2d 264 (1958).

2. United States v. Murdock, 290 U.S. 389, 54 S. Ct. 223, 78 L. Ed. 381 (1933); Spies v. United States, 317 U.S. 492, 63 S. Ct. 364, 87 L. Ed. 418 (1943); Annot., 22 A.L.R.3d 1173 (1968).

3. United States v. Illinois Central R.R., 303 U.S. 239, 58 S. Ct. 533, 82 L. Ed. 773 (1938).