United States v. Johann Ernst Thurnhuber

Johann Thurnhuber appeals his jury conviction on a three-count indictment charging him with making a false statement on a credit application to a federally insured bank, 18 U.S.C. § 1014 . He argues here that (1) the bringing of two of the three counts under which he was convicted was improper as the product of prosecutorial vindictiveness in violation of North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969) and Blackledge v. Perry, 417 U.S. 21 , 94 S.Ct. 2098 , 40 L.Ed.2d 628 (1974), and (2) the jury instruction on the issue of whether the false statements had to be “material” was defective as to all three counts. We affirm Thurnhuber’s conviction on all counts.

FACTS AND PROCEEDINGS BELOW

Thurnhuber was originally indicted and tried on one count under 18 U.S.C. § 1014 for making a false statement on a Master Charge credit card application. When the jury was unable to reach a verdict in that trial, the district court, sua sponte, declared a mistrial. On the following day, the Government filed a superseding indictment charging Thurnhuber with three counts under § 1014. Count I referred to the same conduct described above. Counts II and III charged…