What exactly does it mean to do something for “commercial consideration?” If one gives a neighbor, for example, use of their lawn mower one afternoon and in return, receives use of the neighbor’s ladder, it that distribution of a lawn mower for commercial consideration? What if one trades a car for another car, with no monetary gain?
The issue of what exactly is “commercial consideration” arose in the child pornography for commercial consideration trial of Matthew Wimer in San Mateo County recently.
In April and May of 2017, the San Francisco Police Department used an investigative software program to search the BitTorrent network for suspects distributing child pornography. As the police officer heading the investigation later described in testimony at trial, BitTorrent is a peer-to-peer file sharing network that is used to “share, download [and] distribute” “massive amounts of data” over the Internet, such as movies, videos, and music. It is also used to distribute child pornography.
In April 2017, the San Francisco Police Department’s software program was alerted to a computer with a particular IP address that shared a folder containing multiple files with hash values of known or suspected child pornography.
Over four days in 2017, the San Francisco Police Department connected to that computer through BitTorrent and downloaded over 900 videos and images of child pornography. The images and videos depicted girls as young as eight years old.
Using the target computer’s IP address, the San Francisco Police Department determined that Matthew Wimer was the Internet subscriber for that address. The police then executed a search warrant of Wimer’s home where officers found 817 images and ten videos of one of Wimer’s computers.
California law provides that any person who knowingly distributes or exchanges obscene material involving children performing or simulating sex acts is guilty of a wobbler offense (Penal Code § 311.1(a)).
However, when a person knowingly distributes or exchanges child pornography “for commercial consideration” the offense is a felony punishable by a term of incarceration in state prison for two, three or four years.
After police found the items described above, Wimer was arrested, charged and convicted of four counts of distribution of child pornography for commercial consideration (Penal Code § 311.2(b)) and one count of possession of pornographic images of minors (Penal Code § 311.11(c)(1)). He was sentenced to state prison for a term of four years and eight months.
There was no evidence presented at trial that Wimer received payment or other commercial benefit besides trading pornographic images of minors with others.
Wimer appealed the verdict on the distribution of child pornography for commercial consideration (Penal Code § 311.2(b)), arguing that the San Mateo Superior Court judge at his trial erred by instructing the jury that “commercial consideration” may be established by an intent to trade in pornographic materials with others.
The First Appellate District Court agreed, finding that the element of “commercial consideration” requires proof that Wimer received or intended to receive payment at the time he distributed, exhibited, or exchanged the obscene matter involving minors. “Commercial consideration” cannot extend to the simple act of trading obscene material with others because such trading does not necessarily involve a profitmaking enterprise. Thus, the jury was erroneously instructed, as Wimer argued.
The First Appellate District Court then remanded the case back to the trial court, commenting that the prosecution may elect to retry Wimer on the 311.2(b) charge or stand by his conviction on the lesser-included offense of distributing child pornography without commercial consideration (Penal Code § 311.1(a)).
We present this summary to the reader to not only clarify what for “commercial consideration” does not mean in the context of distribution of child pornography, but also to alert the reader to what is a common error in the prosecution of such sex crimes: overreaching by the prosecution to convict on charges that really cannot be proven, but the jury obediently does so because the nature of the crime is so horrible.
For more information about child pornography in general, please click on the following articles: