The opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11858
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL PEYTON GUNN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 1:20-cr-00014-JRH-BKE-1
____________________
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2 Opinion of the Court 22-11858
Before JORDAN, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
A jury convicted appellant Michael Peyton Gunn of con-
spiring to sex traffic a child, coercing and enticing a child to en-
gage in sexual activity, producing child pornography as a parent,
possessing child pornography, and obstructing a child sex-
trafficking investigation. On the morning when Gunn’s trial was
set to begin, he requested a continuance. He argued that the gov-
ernment had failed to turn over several videos of Gunn’s wife (an
alleged co-conspirator), which Gunn said contained exculpatory
evidence, in violation of the Supreme Court’s decision in Brady v.
Maryland, 373 U.S. 83 (1963). He requested a continuance so that
he could obtain copies of the videos. The district court denied
Gunn’s motion for a continuance and concluded that there was
no Brady violation. Gunn challenges the district court’s decision
on appeal. After careful consideration, we affirm.
I.
In January 2020, FBI agents discovered that pornographic
images of Gunn’s minor child were circulating on the internet.
FBI agents Harold Godbee and Jonathan Escobar visited Gunn’s
home and met with Gunn and his wife, Amanda Gunn,1 to make
1 In this opinion, we refer to Michael Gunn as “Gunn” and Amanda Gunn as
“Amanda.”
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22-11858 Opinion of the Court 3
them aware of the sexually explicit images and to check that the
child was safe. At one point during the conversation, Gunn stated
that there was a “video of his wife on the internet having sex with
multiple men.” Doc. 324 at 99. 2 This comment struck the agents
as odd because they did not understand why Gunn was discussing
Amanda when they were there to talk about pornographic images
of the child.
The day after visiting Gunn’s home, Godbee learned that
additional pornographic images of the child had been found. In
one of the photographs, Godbee could see a man’s sneaker, which
suggested “there was someone in the room . . . when the [child]
was either taking these pictures or having these pictures taken.”
Id. at 414. Godbee and other agents returned to Gunn’s home,
which Gunn agreed to allow them to search. During the search,
the agents found sneakers that matched the shoe in the photo-
graph. The child confirmed to the agents that the shoe in the pho-
tograph belonged to Gunn and that he had taken the photograph.
Gunn was arrested.
As the agents continued their investigation, they uncov-
ered more pornographic images of the child that Gunn had creat-
ed, including images depicting the child being tortured. The
agents also uncovered that Gunn had engaged in other criminal
conduct. The child disclosed in interviews with the agents that
2 “Doc.” numbers refer to the district court’s docket entries.
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4 Opinion of the Court 22-11858
Gunn had repeatedly raped her and that he had been selling her
to other men for sex. Through subpoenas and search warrants,
the government obtained internet communications that corrobo-
rated the child’s report.
A grand jury returned an indictment charging Gunn with
one count of conspiracy to commit sex trafficking of a child, in
violation of 18 U.S.C. § 1594(c); one count of sex trafficking of a
child, in violation of 18 U.S.C. § 1591(a) and (b)(1); one count of
coercion and enticement of a child to engage in sexual activity, in
violation of 18 U.S.C. § 2422(b); four counts of production of child
pornography by a parent or guardian, in violation of 18 U.S.C.
§ 2251(b); one count of possession of child pornography, in viola-
tion of 18 U.S.C. § 2252A(a)(5)(B); and one count of obstructing a
child sex-trafficking investigation, in violation of 18 U.S.C.
§ 1591(d). The indictment also charged Amanda with one count
of conspiracy to commit sex trafficking of a child and one count of
obstructing a child sex-trafficking investigation.
Both Gunn and Amanda initially pled not guilty to the
charges. Approximately two weeks before the trial was set to
begin, Amanda pled guilty to the conspiracy count. Under the
terms of the plea agreement, the government agreed to dismiss
the obstruction charge and recommend that she receive a sen-
tence of 15 years, which was the mandatory minimum that she
faced for the conspiracy offense.
On the morning when Gunn’s trial was supposed to begin,
Gunn, through his counsel, raised with the district court that the
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22-11858 Opinion of the Court 5
government had failed to turn over exculpatory evidence as re-
quired under the Supreme Court’s decision in Brady. Gunn ex-
plained that shortly after his arrest, as part of the government’s
investigation, Godbee had reviewed a series of videos uploaded to
the website PornHub that depicted Amanda engaging in sexually
explicit conduct. Gunn stated that the government had not turned
over copies of the videos and thus violated Brady.
According to Gunn, the videos qualified as exculpatory ev-
idence because they showed Amanda reading from a script that
was similar to one the child had used in an explicit video and thus
supported Gunn’s theory that it was Amanda, not Gunn, who had
forced the child to engage in the illegal conduct. Gunn also ar-
gued that the videos would be impeachment evidence because
they would refute any testimony from Amanda that Gunn co-
erced her to engage in sexual activity. Although Gunn asserted
that the government should have turned over the videos, he
acknowledged that the violation was not “intentional” and that
the government had not acted in “bad faith.” Doc. 324 at 5.
Given the government’s failure to turn over the evidence,
Gunn asked that the court grant a continuance and delay the trial.
He explained that PornHub had removed the videos from its
website due to the government’s investigation. Noting that the
government had recently served a search warrant on PornHub
requesting the videos, he sought additional time to see if the
company would produce copies of the videos.
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6 Opinion of the Court 22-11858
The government opposed Gunn’s request for a continu-
ance. It acknowledged that Godbee had reviewed at least one of
the videos as part of the investigation. But it explained that God-
bee had not recorded or taken screenshots of the video. Because
the “videos have never been in . . . possession of the govern-
ment,” it argued that no Brady violation had occurred. Id. at 7. 3
The government confirmed that it had recently served a search
warrant on PornHub to obtain copies of the videos. But it ex-
plained that its efforts to secure copies of the videos from Porn-
Hub through the search warrant had been unsuccessful. The gov-
ernment also pointed out that Gunn had known about the videos
since at least February 2020 because he mentioned them during
his initial meeting with the agents.
The district court denied Gunn’s request for a continuance.
The court concluded that because the government never had pos-
session, custody, or control of the videos, there was no Brady vio-
lation.
The case proceeded to a trial, which lasted four days. The
government’s trial witnesses included Godbee and other FBI
agents involved in the investigation as well as the child and
Amanda.
3 The government also took the position that the videos were not exculpato-
ry and would not impeach Amanda’s testimony.
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22-11858 Opinion of the Court 7
Godbee, Escobar, and the other FBI agents provided de-
tailed testimony about their investigation, including the initial
meeting with Gunn and Amanda. The jury also heard how the
agents found pornographic images of the child, including images
of the child being tortured, and traced these images to Gunn. In
addition, the agents testified about uncovering evidence that
Gunn had raped the child and forced her to have sex with men for
money.
On cross examination, Gunn asked Godbee about the sex-
ually explicit videos of Amanda that had been posted to PornHub.
Godbee admitted that during the investigation he found videos
on PornHub of Amanda engaging in sexual conduct and reviewed
them but did not record them or save them. Godbee explained
that he did not record the videos because he came across them
“very early on” in the investigation and it was not illegal for an
adult to post pornographic videos on the website. Id. at 534. God-
bee conceded that based on the content of the videos, and assum-
ing that Amanda had “willingly” participated in the conduct de-
picted, he would have concluded that she had engaged in “deviant
sexual behavior,” including sadomasochism. Id. at 535.
The child also provided detailed testimony about Gunn’s
crimes. She described how over a several-year period Gunn re-
peatedly raped her. She also described how, beginning when she
was about 11 or 12 years old, Gunn forced her to pose for porno-
graphic pictures and to have sex with men for money. The child
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8 Opinion of the Court 22-11858
also testified that after Godbee visited the home, Gunn removed
items from the family’s home and destroyed her cell phone.
In addition, the government called Amanda as a witness at
trial. Amanda admitted that she had conspired with Gunn to sex
traffic their child.4 In her testimony, Amanda described how she,
too, was a victim of Gunn’s abuse. Amanda testified that Gunn
had convinced her that the MS-13 gang would kill their family un-
less she posed for pornographic pictures and videos and engaged
in prostitution. Although the pornographic images of Amanda
were initially published on the internet under an alias, Gunn later
changed the alias to include Amanda’s first name “[a]s a punish-
ment for . . . not being a good enough whore.” Id. at 291.
Amanda testified about other punishments that Gunn in-
flicted upon her. On one occasion, Gunn told Amanda that the
gang was unhappy because she was not flirting with enough men
on the internet and that she would be raped as punishment. After
making Amanda drink alcohol and take pills, Gunn blindfolded
her, and a group of men came to the home and raped her. Gunn
recorded the rapes and posted the video on PornHub.
Amanda further described how Gunn destroyed evidence
after the agents came to the house and reported finding porno-
graphic images of the child on the internet. According to Amanda,
4 At the time of trial, Amanda had pled guilty to the conspiracy charge but
had not yet been sentenced. The district court later sentenced her to 235
months’ imprisonment.
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22-11858 Opinion of the Court 9
after the agents left, Gunn removed items from their house, in-
cluding a laptop. She saw Gunn drill a hole into a flash drive so
that the data stored on the drive could not be accessed. Gunn told
Amanda that he was going to destroy the child’s cell phone and
hide the pieces.
On cross examination, Gunn’s attorney suggested that it
was Amanda alone who had produced the child pornography and
sex trafficked the child and that she made up the story of Gunn’s
involvement to avoid being held responsible for her crimes. The
attorney accused Amanda of posting sexually explicit videos of
herself on PornHub and having a “deviant sexual lifestyle.” Id. at
340. Amanda denied these accusations.
At the close of evidence, Gunn moved for an acquittal on
all counts, challenging the sufficiency of the evidence. See Fed. R.
Crim. P. 29. The district court denied the motion. The jury con-
victed Gunn on all counts.
After the trial, Gunn filed a motion for judgment of acquit-
tal or, in the alternative, a new trial, again challenging the suffi-
ciency of the evidence. The court denied the motion and later
imposed a life sentence. This is Gunn’s appeal.
II.
“The Sixth and Fourteenth Amendment to the U.S. Consti-
tution guarantee that any person brought to trial in any state or
federal court must be afforded the right to assistance of counsel
before he or she can be validly convicted and punished by impris-
onment.” United States v. Verderame, 51 F.3d 249, 251 (11th Cir.
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10 Opinion of the Court 22-11858
1995). “Implicit in this right to counsel is the notion of adequate
time for counsel to prepare the defense . . . .” Id. at 252. As a re-
sult, “[u]nder certain circumstances, denial of a motion for con-
tinuance of trial” may violate the Constitution. Id. at 251. To pre-
vail on a claim that the denial of a continuance amounted to a
constitutional violation, a defendant “must show that the denial
of the motion for continuance was an abuse of discretion[,] which
resulted in specific substantial prejudice.” Id.
Gunn argues that the district court abused its discretion in
denying his motion for a continuance because it deprived him of
an opportunity to prepare his defense by obtaining copies of the
videos of Amanda that were posted on PornHub. According to
Gunn, the videos constituted favorable evidence that the gov-
ernment was required to disclose under Brady because the videos
showed that Amanda had a “deviant sexual lifestyle” and thus was
“more likely the person to have committed the acts of exploita-
tion against the” child. Appellant’s Br. at 7.
In Brady, the Supreme Court recognized that “the suppres-
sion by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.” Brady, 373 U.S. at 87. To establish a
Brady violation, a defendant must show: (1) the government pos-
sessed evidence that was favorable to him; (2) he did not possess
the evidence, nor could he have obtained it with reasonable dili-
gence; (3) the prosecution suppressed the favorable evidence; and
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22-11858 Opinion of the Court 11
(4) if the evidence had been disclosed, there is a reasonable proba-
bility that the outcome of the trial would have been different.
United States v. Stahlman, 934 F.3d 1199, 1229 (11th Cir. 2019).
Even assuming that the PornHub videos were evidence fa-
vorable to Gunn, we agree with the district court that no Brady
violation occurred.5 Gunn failed to show that the government
possessed the videos. Certainly, the record reflects that Godbee
viewed the videos of Amanda that were posted on PornHub as
part of his investigation. But there was no evidence that Godbee
downloaded the videos or made screen recordings to preserve
them. It is also true that shortly before trial the government at-
tempted to obtain copies of the videos by serving a search war-
rant on PornHub. But the government’s attempt was unsuccess-
ful. Because the government did not have the videos in its posses-
sion, we conclude that no Brady violation occurred.
Gunn’s Brady claim also fails for another reason: he failed
to show that he could not obtain the videos with reasonable dili-
gence. The record reflects that Gunn knew of the videos by Feb-
5 Gunn argues that we review de novo the district court’s determination that
no Brady violation occurred. See United States v. Brester, 786 F.3d 1335, 1338
(11th Cir. 2015). By contrast, the government says that we review this issue
for plain error only because Gunn did not raise his Brady claim in his motion
for new trial. See United States v. Gallardo, 977 F.3d 1126, 1142 (11th Cir.
2020). We need not resolve this dispute because, even assuming de novo re-
view applies, we cannot say that the district court erred in concluding there
was no Brady violation.
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12 Opinion of the Court 22-11858
ruary 2020, when he mentioned them to the agents during their
initial meeting. And at that point in time the videos were still
available on PornHub. If Gunn had acted with reasonable dili-
gence, he could have obtained copies of the videos by download-
ing them from PornHub.
Before concluding, we note that a constitutional violation
also may occur when the government loses or destroys evidence.
See United States v. Revolorio-Ramo, 468 F.3d 771, 774 (11th Cir.
2006). To establish a due process violation based on the loss or
destruction of evidence, the evidence “must both possess an ex-
culpatory value that was apparent before the evidence was de-
stroyed[] and be of such a nature that the defendant would be un-
able to obtain comparable evidence by other reasonably available
means.” Id. (internal quotation marks omitted). In addition, when
the lost evidence was not clearly exculpatory but only “potentially
useful,” the defendant must show that law enforcement acted in
bad faith. See Arizona v. Youngblood, 488 U.S. 51, 57–58 (1988).
Here, Gunn has raised no argument on appeal that a due
process violation occurred based on the government’s failure to
preserve the videos when Godbee first viewed them. Thus, he has
forfeited the issue of whether a due process violation occurred
based on the government’s loss or destruction of evidence. See
United States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en
banc). But even assuming Gunn had raised this issue on appeal,
we would conclude that no due process violation occurred given
Gunn’s concession in the district court that the government did
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not act in bad faith in failing to download or make screen record-
ings of the videos of Amanda. See Youngblood, 488 U.S. at 57–58.
Because no Brady violation occurred, the district court did
not abuse its discretion when it denied Gunn’s motion to contin-
ue the trial.
AFFIRMED.