                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-2219
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                            MICHAEL EUGENE GORNY,
                                             Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. No. 2-13-cr-00070-001)
                       District Judge: Honorable Nora B. Fischer
                      ____________________________________

                       Submitted under Third Circuit LAR 34.1(a)
                                     June 7, 2016

            Before: CHAGARES, KRAUSE, AND SCIRICA, Circuit Judges

                              (Opinion filed: July 12, 2016)



                                        OPINION*




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
KRAUSE, Circuit Judge.

          Following a jury trial, Michael Eugene Gorny was convicted of being a felon in

possession of a firearm and was sentenced to 110 months’ imprisonment. He appeals,

challenging his conviction on the ground that the District Court erred in giving an “anti-

CSI” jury instruction and his sentence on the ground that the District Court erroneously

applied § 2K2.1(a)(1) of the United States Sentencing Guidelines (“U.S.S.G.”). We will

affirm.

I.        Facts and Procedural History1
          Michael Gorny was charged with one count of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). The Government’s evidence at trial was

that on July 4, 2012, four detectives from the Pittsburgh Police Department went to

Gorny’s house to arrest him for an unrelated crime. Detectives Joseph Novakowski and

Sheila Ladner parked their car about ten car-lengths away from the house on the other

side of an empty lot, which according to their testimony, allowed them to surveil the

house with an unobstructed view. Both detectives saw Gorny emerge from the house and

toss a bag into the yard of the vacant house next door. After the detectives arrested

Gorny, they retrieved the bag and found two handguns inside. The police unsuccessfully

tested the bags and guns for fingerprints but did not test them for DNA evidence.

          In defense, Gorny sought to show that the guns belonged to his friend, Edward

Deakings, who was with him on July 4th but who died shortly before trial. Deakings’s

          1
         Because we write primarily for the parties, we provide background only as
relevant to the issues on appeal.
                                              2
former girlfriend, Marquea Davis, and her sister, Laquita Young, both testified that

Deakings brought the guns to Young’s house on July 3, 2012, that Young told Deakings

to remove the guns from the house because there were children present, and that

Deakings left the next morning. In support of the theory that someone other than Gorny,

who is Caucasian, placed the guns in the yard, defense counsel elicited testimony from

Gorny’s neighbor, Joanna Lancaster, that on the morning of July 4th, she saw a “black

gentleman [do] something close to the abandoned house next to [Gorny’s].” App. 267.

The defense also offered into evidence photos purportedly taken only days after Gorny’s

arrest that showed tall grass in the empty lot that Gorny argued would have obstructed the

officers’ view. Both Lancaster and Gorny’s aunt, Jamie Wilsher, testified that the

pictures accurately reflected the length of the grass on July 4, 2012.

       In his closing, Gorny’s counsel highlighted the fact that no fingerprints were

recovered from the gun or the bags and that the officers did not test these items for DNA

because they did not want to “develop evidence against themselves,” and he urged the

jury to find that the Government had not met its burden of proof. App. 351. After

summation and over Gorny’s objection, the District Court gave a so-called “anti-CSI”

instruction,2 telling the jury that:

       Although the government is required to prove Mr. Gorny guilty beyond a
       reasonable doubt, the government is not required to present all possible

       2
        The instruction is so called because it combats the purported effect of the
plethora of crime scene investigation shows on television that may cause jurors to expect
wide-ranging forensic evidence in criminal trials. See Robinson v. State, 84 A.3d 69, 75
(Md. 2014).
                                              3
       evidence related to the case or to produce all possible witnesses who might
       have some knowledge about the facts of the case.

       During the trial, you heard testimony of witnesses and argument by counsel
       that the government did not use specific investigative techniques, such as
       DNA analysis, the use of audio or video recording devices, or the taking
       of photographs. You may consider these facts in deciding whether the
       government has met its burden of proof because, as I told you, you should
       look to all of the evidence or lack of evidence in deciding whether the
       defendant is guilty. However, there is no legal requirement that the
       government use any of these specific investigative techniques or all
       possible techniques to prove its case. As such, there is no requirement that
       the officers conduct DNA analysis, use audio or video recording devices, or
       take photographs.  

App. 376-77.

       Apparently crediting the detectives’ testimony, the jury convicted Gorny on

September 5, 2014, after a three-day trial. On April 29, 2015, the District Court

sentenced Gorny to 110 months’ imprisonment, in part because it found that Gorny had

two prior convictions for crimes of violence. App. 16, 570-71, 746.

II.    Jurisdiction

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have

jurisdiction pursuant to 28 U.S.C. § 1291.

III.   Analysis

       Gorny alleges that the District Court erred in giving the anti-CSI instruction and in

finding at sentencing that he had two prior convictions for crimes of violence justifying

his sentence under § 2K2.1(a)(1). For the reasons explained below, we conclude that

neither argument has merit.



                                             4
       A.     The “Anti-CSI” Jury Instruction

       When a defendant contends that a District Court erred by misstating the law, we

exercise plenary review. United States v. Stadtmauer, 620 F.3d 238, 252 (3d Cir. 2010).

On the other hand, when a defendant argues that the instruction was not justified by the

evidence, we review for “abuse of discretion and view the evidence and the inferences

drawn therefrom in the light most favorable to the Government.” Id. (citation and

internal quotation marks omitted). Here, Gorny challenges the instruction on both

grounds. We perceive no error.

       First, the proposition that the Government need not use specific investigative

techniques, or all possible investigative techniques, is a correct statement of law. See

United States v. Brown, 765 F.3d 278, 297 (3d Cir. 2014) (stating that “the Government

[is] not legally obligated to conduct a fingerprint analysis of the firearm” to prove that a

felon was in possession of a firearm). Indeed, Gorny concedes as much in his Reply

Brief. See Appellant’s Reply at 1. Nor did the instruction reduce the Government’s

burden of proof. “Due process is satisfied if the instructions, taken as a whole, accurately

convey the concept of reasonable doubt to the jury.” United States v. Isaac, 134 F.3d

199, 203 (3d Cir. 1998). Here, the challenged instruction by its terms says nothing about

the level of proof the Government must present to convict. The District Court explained

that “[y]our concern, as I have said, is to determine whether or not the evidence admitted

in this trial proves the defendant’s guilt beyond a reasonable doubt,” App. 377, and

instructed that “[a] reasonable doubt is a fair doubt based on reason, logic, common sense


                                              5
or experience,” App. 379. See United States v. Hernandez, 176 F.3d 719, 727-34 (3d Cir.

1999). Moreover, the District Court expressly stated that reasonable doubt may be found

based on the lack of evidence admitted: “it is proper for the defense to point to [a] lack of

evidence and you, the jury, may consider same in determining whether the government

met its burden to prove the defendant's guilt beyond a reasonable doubt.” App. 377; see

also App. 379 (instructing that reasonable doubt “may arise from the evidence or from

the lack of evidence”). Thus, the District Court’s instructions made clear that the jury

was free to find that even if the Government is not required to present, say, DNA

evidence, the absence of such evidence could raise a reasonable doubt demanding

acquittal.

       In the context of the full instructions, the “anti-CSI” instruction was thus legally

proper as consistently held by the Courts of Appeals. See, e.g., United States v.

Saldarriaga, 204 F.3d 50, 52-53 (2d Cir. 2000) (per curiam) (finding no error in a similar

instruction); United States v. Mason, 954 F.2d 219, 222 (4th Cir. 1992) (stating that a

similar instruction “adequately advised the jury on the putative relevance of the officers’

failure to test the gun for fingerprints”); United States v. Cota-Meza, 367 F.3d 1218, 1223

(10th Cir. 2004) (explaining that giving an instruction materially identical to the one here

is not an abuse of discretion because it accurately explains the law and expressly allows




                                              6
the jury to consider the manner of the investigation in weighing the evidence presented or

not presented).3

       Second, we find no abuse of discretion in the District Court’s conclusion that the

trial evidence justified the challenged instruction in this case. The evidence justifies such

an instruction when “the defendant has argued that the government’s case is deficient

because of the failure to use one or more specific investigative techniques.” Third Cir.

Model Criminal Jury Instructions § 4.14 cmt.; see also Saldarriaga, 204 F.3d at 52-53.

Here, defense counsel argued that the Government should have “conduct[ed] more

investigation” and “do[ne] the DNA test.” App. 351-52. Thus, instructing the jury that

the Government need not engage in particular investigative techniques simply ensured

that the jury considered the evidence, or lack thereof, within the applicable framework.

Indeed, in the face of defense counsel’s arguments, a poorly instructed jury might have

assumed that the Government was under an obligation to use those techniques, and an

instruction to prevent this misapprehension was thus appropriate. In sum, we find no

merit to Gorny’s challenge to the “anti-CSI” instruction.


       3
         Gorny relies not on federal authority but on Robinson, 84 A.3d 69, for the
proposition that the instruction intruded upon the province of the jury to weigh the
evidence and decide the defendant’s guilt. The Maryland Court of Appeals observed in
that case that instructions like the one here can “result[] in a non-neutral commentary on
the evidence, or the absence of evidence, actually admitted, and invade[] the province of
the jury, thus violating [a defendant’s] constitutional rights to due process and a fair
trial”—at least where the lack of physical evidence is a crucial issue in the case. Id. We
are, of course, not bound by this authority and, in any event, we disagree with it, having
concluded that the “anti-CSI” instruction given in this case is a neutral commentary that
merely advises the jury what uses it may make of the presence or absence of evidence.

                                              7
       B.      Gorny’s Sentence

       Gorny relies on Johnson v. United States, 135 S. Ct. 2551 (2015) (holding that the

residual clause of the Armed Career Criminal Act (“ACCA”) is unconstitutionally

vague), to challenge the finding that he had two prior convictions for “crimes of

violence” as defined by U.S.S.G. § 4B1.2, which led to a higher base offense level

pursuant to U.S.S.G. § 2K2.1(a)(1). Because Gorny did not object in the District Court,

we review for plain error. See Henderson v. United States, 133 S. Ct. 1121, 1129 (2013);

Johnson v. United States, 520 U.S. 461, 466-67 (1997) (applying the plain error standard

where the defendant’s argument was based on precedent decided after trial and during

appeal). That is, we may not reverse unless there was “(1) error, (2) that is plain, and (3)

that affects substantial rights.” Gov’t of the V.I. v. Mills, No. 13-4705, --F.3d--, 2016 WL

1425885, at *5 (3d Cir. Apr. 12, 2016) (citations and internal quotation marks omitted).

“If these conditions are met, we may exercise our discretion to remedy the error, but only

if the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (citations and internal quotation marks omitted).

       To consider the propriety of the application of § 2K2.1(a)(1), we first employ a

modified categorical approach to ascertain which subsection of Pennsylvania’s divisible

aggravated assault statute Gorny violated, see Mathis v. United States, --S. Ct.--, 2016

WL 3434400, at *3-5 (U.S. June 23, 2016) (discussing the categorical and modified

categorical approach in the context of the Armed Career Criminal Act (“ACCA”));

Descamps v. United States, 133 S. Ct. 2276, 2281 (2013) (same); United States v.


                                                8
Hopkins, 577 F.3d 507, 511 (3d Cir. 2009) (noting that “authority interpreting” the

ACCA “is generally applied to” § 4B1.2); see also United States v. Brown, 765 F.3d 185,

191 (3d Cir. 2014), and we must then decide whether those convictions were for crimes

of violence.4

       At issue are Gorny’s convictions arising from conduct occurring in 2005 (his

“2005 conviction”) and 2006 (his “2006 convictions”). As to Gorny’s 2005 conviction,

Gorny challenges the Government’s assertion that he was convicted under 18 Pa. C.S.

§ 2702(a)(4), which provides that a person is guilty of aggravated assault when he

“attempts to cause or intentionally or knowingly causes bodily injury to another with a

deadly weapon,” and not under 18 Pa. C.S. § 2702(a)(1), which provides that a person is

guilty of aggravated assault when he “attempts to cause serious bodily injury to another,

or causes such injury intentionally, knowingly or recklessly under circumstances

manifesting extreme indifference to the value of human life.” The Government has

submitted not only a transcript of the plea proceedings, but also a signed plea agreement

and judgment reflecting that the Government’s motion to amend the charge to

§ 2702(a)(4) was granted, leaving no reasonable dispute that Gorny pled guilty to

attempted aggravated assault with a deadly weapon under § 2702(a)(4). Supp. App. II at




       4
        We need not decide whether Johnson invalidates the residual clause of U.S.S.G.
§ 4B1.2 given that the Government concedes as much.
                                            9
1.5 As to Gorny’s 2006 convictions, he does not dispute that these include convictions

under both §§ 2702(a)(1) and (a)(4).

       We conclude that § 2702(a)(4) is a crime of violence because it “has as an element

the use, attempted use, or threatened use of physical force against the person of another.”

U.S.S.G. § 4B1.2(a)(1) (the “elements clause”). A crime falls within the elements clause

when it contains, as an element, the use of violent force—that is, “force capable of

causing physical pain or injury to another person.” See Johnson v. United States, 559

U.S. 133, 140 (2010); United States v. Mahone, 662 F.3d 651, 656 (3d Cir. 2011),

partially abrogated on other grounds by Brown, 765 F.2d 273. A conviction under

§ 2702(a)(4) requires proof that the defendant caused or attempted to cause bodily injury.

The Supreme Court has explained that “the knowing or intentional causation of bodily

injury necessarily involves the use of physical force.” United States v. Castleman, 134 S.

Ct. 1405, 1414 (2014). While Castleman reserved the question of whether “bodily

injury” is necessarily caused by “violent force” as defined in Johnson, 559 U.S. at 140,

we need not answer this question, for we conclude that it would not be plain error to

determine that the causation of bodily injury necessarily requires the use of force capable

of causing bodily injury—that is, “violent force.” See United States v. Rice, 813 F.3d

       5
         We may consider these documents in determining Gorny’s crimes of conviction.
See Shepard v. United States, 544 U.S. 13, 26 (2005). We may also take judicial notice
of these documents because they do not leave any “reasonable dispute” as to Gorny’s
crime of conviction, see Fed. R. Evid. 201, even though they were not presented to the
District Court. See United States v. Remoi, 404 F.3d 789, 792-93 & n.1 (3d Cir. 2005)
(holding in an identical circumstance that it would be “pointless to remand the case
simply to have the District Judge take notice of that which we may notice ourselves”).
                                            10
704, 706 (8th Cir. 2016) (holding that a conviction for “caus[ing] physical injury” to

another includes as an element the use of violent force capable of causing physical injury

because “it is impossible to cause bodily injury without using force ‘capable of’

producing that result”). Further, a conviction under § 2702(a)(4) requires the knowing or

intentional causation of (or attempt to cause) bodily injury, which satisfies the elements

clause’s mens rea requirement. See, e.g., Mahone, 662 F.3d at 655 (explaining that to

constitute a crime of violence under the elements clause, a conviction requires intentional

conduct); Tran v. Gonzalez, 414 F.3d 464, 471 & n.7 (3d Cir. 2005).

       Next, given that Gorny’s 2005 conviction was for attempted aggravated assault,

see App. 569, we must divine the “generic definition” of attempt “as defined by [most]

States, learned treatises, and the Model Penal Code [“MPC”],” United States v. Marrero,

743 F.3d 389, 399 (3d Cir. 2014), and decide whether Pennsylvania’s definition of

attempt is substantially similar to that definition.6 We conclude that it is.

       The MPC provides that a person is guilty of attempt if he commits “an act or

omission constituting a substantial step in a course of conduct planned to culminate in his

commission of the crime.” MPC § 5.01(1)(c). A substantial step is conduct that “is

strongly corroborative of the actor’s criminal purpose.” Id. § 5.01(2). The MPC’s

“‘substantial step’ language is to be found in the great majority of the attempt statutes in

the modern recodifications. Even in the absence of such a statute, the courts in several


       6
        Gorny argues that a majority of jurisdictions do not incorporate the crime of
attempt into their assault statutes, but this is irrelevant because “crime of violence”
includes “attempting to commit” a crime of violence. See U.S.S.G. § 4B1.2.
                                              11
jurisdictions have adopted the [MPC] ‘substantial step’ approach.” 2 Wayne LaFave

Subst. Crim. L. § 11.4 (footnote omitted) (citing twenty-three statutes, including

Pennsylvania’s). Several other Circuits have adopted the MPC’s definition of attempt as

the generic federal definition. See, e.g., Ming Lam Sui v. I.N.S., 250 F.3d 105, 115-16 (2d

Cir. 2001) (stating that the generic definition of attempt requires a substantial step that “is

strongly corroborative of the actor’s criminal purpose”); United States v. Garcia-

Figueroa, 753 F.3d 179, 187 (5th Cir. 2014) (following the MPC and holding that generic

attempt requires a “substantial step” that is “strongly corroborative of the actor’s criminal

purpose”).

       Likewise, in Pennsylvania, “[a] person commits an attempt when, with intent to

commit a specific crime, he does any act which constitutes a substantial step toward the

commission of that crime.” 18 Pa. C.S. § 901(a). A substantial step is an act that is more

than mere preparation and which is at least substantially similar to one that is strongly

corroborative of an actor’s criminal purpose. See Pa. Suggested Std. Jury Instructions

(Crim), §12.901A (stating that a substantial step is an act that “strongly corroborates the

jury’s belief that the person, at the time he or she did the act, had a firm intent to commit

that crime”); cf. Commonwealth v. Allen, 435 A.2d 1270, 1273 (Pa. Super. Ct. 1981)

(stating that a “substantial step” is “more than mere preparation”). Thus, Pennsylvania’s

version of attempt is substantially similar to that of the MPC and at least twenty-two

jurisdictions, and there is no plain error in concluding that it reaches no broader than the




                                              12
generic definition.7 We therefore conclude that District Court did not plainly err in

concluding that Gorny’s 2005 attempted aggravated assault conviction was a crime of

violence under the elements clause.

       As to his 2006 convictions, Gorny raises another challenge: that his 2006

§ 2702(a)(4) conviction cannot be counted as a crime of violence because it received no

criminal history points under U.S.S.G. § 4A1.1 and was not counted separately from his

2006 § 2702(a)(1) conviction. See U.S.S.G. §§ 2K2.1 cmt. 10, 4A1.2(a)(2). Yet several

Circuits have rejected similar arguments. See United States v. Cornog, 945 F.2d 1504,

1506 n.3 (11th Cir. 1991) (stating in dicta that the use of the longest sentence of

imprisonment for the purposes of calculating criminal history makes logical sense, but, in

contrast, “[i]t would be illogical . . . to ignore a conviction for a violent felony just

because it happened to be coupled with a nonviolent felony conviction having a longer

sentence”); cf. United States v. Williams, 753 F.3d 626, 639 (6th Cir. 2014). In fact, the

Eighth Circuit rejected under plain error review the precise argument Gorny makes here

despite a prior precedential opinion from that Circuit adopting that argument. See United


       7
         In an effort to prove that Pennsylvania’s version of attempt is broader than the
federal definition, Gorny directs us to Ninth Circuit precedent for the persuasive value of
its holding that a “substantial step occurs when a defendant’s actions unequivocally
demonstrate that the crime will take place unless interrupted by independent
circumstances.” United States v. Gonzalez-Monterroso, 745 F.3d 1237, 1243 (9th Cir.
2014) (internal quotation marks omitted). But that Circuit has also explained that to be “a
‘substantial step,’ the action in question must be ‘strongly corroborative of the firmness
of a defendant’s criminal intent,’” Hernandez-Cruz v. Holder, 651 F.3d 1094, 1102 (9th
Cir. 2011) (citing Model Penal Code § 5.01(2)), which only confirms our holding that
Pennsylvania’s definition of attempt is no broader than the federal definition.
                                               13
States v. Ellis, 815 F.3d 419, 422-23 (8th Cir. 2016). 8 We therefore conclude that under

these circumstances, the District Court committed no plain error when it counted his 2006

aggravated assault conviction as a crime of violence.9



      8
         We also reject Gorny’s argument that his 2006 conviction under § 2702(a)(4)
could not be a crime of violence because he received a sentence of “no further penalty”
(“NFP”). Federal law controls the meaning of “sentence,” United States v. Langford, 516
F.3d 205, 209-10 (3d Cir. 2008), and pursuant to U.S.S.G. § 4A1.2(o), a sentence for any
felony offense is counted as a prior sentence “regardless of the actual sentence imposed.”
Further, in Pennsylvania, a court may sentence a defendant to any one of multiple
sentences, “and may impose them consecutively or concurrently”; possible sentences
include, among other things, “[a] determination of guilt without further penalty.” See 42
Pa. C.S. § 9721(a)(2). Finally, for the purposes of § 4B1.2, a “[p]rior felony conviction”
means a “conviction for an offense punishable by death or imprisonment for a term
exceeding one year, regardless of whether such offense is specifically designated as a
felony and regardless of the actual sentence imposed.” U.S.S.G. § 4B1.2 n.1. It would
be “illogical,” Cornog, 945 F.2d at 1506 n.3, to ignore the 2006 § 2702(a)(4) conviction
as a predicate simply because he was sentenced to guilt without further penalty. Cf.
Frias-Camilo v. Att’y Gen. of U.S., --F.3d--, 2016 WL 3443111, at *4 (3d Cir. June 23,
2016) (holding that a sentence of NFP is a sentence under the INA). Thus, it is far from
“clear” or “obvious” that a sentence of NFP precludes the conviction from counting as a
crime of violence.
      9
          Even if we were limited to considering Gorny’s § 2702(a)(1) convictions, we
would still affirm under our relaxed standard of plain error review in light of the
inclusion of “aggravated assault” as a crime of violence pursuant to Application Note 1 to
U.S.S.G. § 4B1.2. We have held that “offenses listed in Application Note 1 are
‘enumerated’ for purposes of the crime of violence analysis.” Marrero, 743 F.3d at 399.
Given that Johnson “does not call into question the application of the [ACCA] to [its]
four enumerated offenses,” Johnson, 135 S. Ct. at 2563, it is far from “clear” or
“obvious” that Johnson invalidates Application Note 1. See, e.g., United States v.
Jeffries, --F.3d--, 2016 WL 2848498 (5th Cir. May 13, 2016) (per curiam) (holding that
the defendant’s aggravated assault conviction was a crime of violence pursuant to
Application Note 1 even after Johnson). Moreover, we have previously held that a
conviction under § 2702(a)(1), which is worded nearly identically to MPC § 211.1(2)(a),
is a crime of violence because “aggravated assault” is enumerated in the relevant
application note. See United States v. McQuilken, 97 F.3d 723, 726 n.4, 729 (3d Cir.
1996); see also, e.g., United States v. Rede-Mendez, 680 F.3d 552, 557 (6th Cir. 2012)
                                            14
       Because we perceive no plain error in the application of § 2K2.1(a)(1), we affirm

Gorny’s sentence.

V.     Conclusion

       For the foregoing reasons, we affirm Gorny’s conviction and sentence.




(“We have recognized the [MPC] definition of aggravated assault as the generic
definition for the purpose of deciding whether a crime with that label is a crime of
violence, at least in states which have merged the crimes of assault and battery.”).
                                            15
