United States v. Michael Gorny, 655 F. App'x 920

Background

On July 4, 2012, Pittsburgh detectives observed Michael Gorny leave his house and purportedly throw a bag into the yard of an adjacent vacant lot; officers recovered that bag and found two handguns inside. No fingerprint or DNA testing was performed on the bag or firearms.
Gorny, a convicted felon, was charged under 18 U.S.C. § 922(g)(1) with possession of firearms; he testified (through witnesses) that the guns belonged to a friend, Edward Deakings, and presented evidence (photos, eyewitnesss) suggesting the officers’ view could have been obstructed.
In closing defense argued the government failed to develop forensic evidence (fingerprints, DNA), arguing the absence of such testing undermined proof.
Over defense objection, the district court gave an "anti‑CSI" instruction telling jurors the government is not required to use particular investigative techniques (e.g., DNA, photos) but the absence of such techniques may be considered when evaluating guilt beyond a reasonable doubt.
The jury convicted Gorny after a three‑day trial. At sentencing the district court applied U.S.S.G. § 2K2.1(a)(1), increasing the base offense level because it found Gorny had two prior Pennsylvania aggravated‑assault convictions qualifying as "crimes of violence."
Gorny appealed both the jury instruction and the sentencing enhancement; the Third Circuit affirmed both the conviction and the sentence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred in giving an "anti‑CSI" instruction	Gorny argued the instruction improperly commented on the evidence and invaded the jury’s province when lack of physical evidence was pivotal	Government and court argued the instruction correctly states law: gov’t is not required to use specific investigative techniques and jurors may consider absence of testing	Affirmed — instruction was a correct statement of law, did not lower burden of proof, and was justified by defense argument that criticized lack of testing
Whether the absence of forensic testing (DNA/fingerprints) required a different instruction or acquittal	Argued lack of forensic testing undermined proof and the instruction prejudiced him	Argued jurors may consider absence of evidence but government need not conduct all tests	Rejected — court clarified jury could find reasonable doubt from lack of evidence despite being told gov’t has no obligation to use specific techniques
Whether Gorny’s prior convictions qualify as "crimes of violence" under U.S.S.G. § 4B1.2 (affecting § 2K2.1(a)(1))	Gorny contended Johnson and related doctrine question whether his priors (including attempt and convictions with NFP sentences) qualify as crimes of violence	Government argued his convictions (including § 2702(a)(4) and § 2702(a)(1) attempts) satisfy the elements clause or are enumerated in Application Note 1; documents show plea amended to § 2702(a)(4)	Affirmed — § 2702(a)(4) (attempt or causing bodily injury with deadly weapon) fits the elements clause; Pennsylvania attempt aligns with generic attempt; plain‑error review finds no reversible error
Whether a 2006 aggravated‑assault conviction that received "no further penalty" or was consolidated for sentencing can serve as a predicate crime of violence	Argued the NFP disposition and sentencing consolidation mean the conviction should not count separately as a crime of violence	Government and court said federal law controls, NFP still counts as a prior felony for guidelines and the conviction need not have produced a separate criminal‑history point to qualify	Affirmed — prior convictions count as crimes of violence for guideline purposes notwithstanding NFP or consolidation; no plain error in counting them

Key Cases Cited

United States v. Stadtmauer, 620 F.3d 238 (3d Cir.) (standards for reviewing jury‑instruction challenges)
United States v. Brown, 765 F.3d 278 (3d Cir.) (government not required to conduct fingerprint analysis to prove felon‑in‑possession)
United States v. Isaac, 134 F.3d 199 (3d Cir.) (instructions as a whole must convey reasonable doubt)
United States v. Hernandez, 176 F.3d 719 (3d Cir.) (reasonable‑doubt instruction precedents)
United States v. Saldarriaga, 204 F.3d 50 (2d Cir.) (approving similar anti‑CSI instruction)
United States v. Mason, 954 F.2d 219 (4th Cir.) (same)
United States v. Cota‑Meza, 367 F.3d 1218 (10th Cir.) (same)
Johnson v. United States, 135 S. Ct. 2551 (Sup. Ct.) (invalidating ACCA residual clause; referenced for sentencing challenge)
United States v. Castleman, 134 S. Ct. 1405 (Sup. Ct.) (knowing/intentional causation of bodily injury involves use of physical force)
Descamps v. United States, 133 S. Ct. 2276 (Sup. Ct.) (categorical/modified‑categorical approach to prior convictions)
United States v. Marrero, 743 F.3d 389 (3d Cir.) (treatment of aggravated assault and attempt in crime‑of‑violence analysis)
United States v. Mahone, 662 F.3d 651 (3d Cir.) (elements clause mens rea discussion)
United States v. Hopkins, 577 F.3d 507 (3d Cir.) (applying ACCA/§4B1.2 interpretive authority)
United States v. Rice, 813 F.3d 704 (8th Cir.) (causing physical injury necessarily involves force capable of causing injury)