Mark Salling, 33, an actor who appeared on “Glee” was arraigned in U.S. District Court in Los Angeles on federal charges of possessing child pornography. Salling played Noah “Puck” Puckerman on the Fox show. He was arrested in December at his home in Los Angeles, where detectives seized a computer, hard and flash drives.

Salling is charged with one count of accessing the internet to obtain child pornographic images and another count of possessing child pornographic videos. If convicted, Salling faces up to 20 years in prison per count in addition to other terms and conditions.

U.S. Magistrate Judge Rozella A. Oliver ordered Salling to be released once he posts bail in the amount of $150,000 of which $100,000 must be his own money. Salling, plead not guilty and remains out of custody. The judge also restricted Salling's computer time and travel.

Salling was indicted by a federal grand jury of two counts of possession of child pornography. According to U.S. Attorney's spokesman Thom Mrozek, Salling possessed a very organized and extensive collection of child pornography on several electronic devices.

The crime of possessing child pornography can be charged in either state or federal court. The major difference between filing a case in state versus federal court is the punishment. In California, possessing child pornography can be found in Penal Code §311.11. Penal Code §311.11 carries a maximum punishment of three years in state prison. However, if a person has previously been convicted of possessing child pornography or has more than 600 images of child pornographic content, the punishment can be as much as 6 years in state prison.

In federal court, possessing child pornography is found in 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2). The maximum punishment in federal court for being in possession of child pornography is 20 years federal prison per count. Again, the greater number of images and previous convictions do increase the prison exposure.

Another unique difference in federal court is the “mandatory minimum” sentences. A “mandatory minimum” means the court and prosecutors are not allowed to offer or sentence defendants to less than the mandatory minimum. Not all federal crimes have mandatory minimums but they are typically found in federal sex crimes. For possession of child pornography, the mandatory minimum is 5 years. If the defendant has a prior conviction for a similar crime, regardless of jurisdiction, the mandatory minimum is 15 years with a maximum of 20 years in federal prison.

Clearly, committing the same act has very disproportionate punishments. So, why do some people get charged in federal court and why do some people get charged in state court? The answer typically lies in the agency that investigates the case. Child pornography investigations can begin with a local agency such as the Los Angeles Police Department or the Orange County Sherriff. These local agencies send most of their cases to the district attorney's office because most of their investigations involve crimes that are only punishable in state court, meaning they are violations of California law. Federal agencies such as the F.B.I., Homeland Security and D.E.A typically investigate crimes that are against the United States, meaning they are a violation of federal law. Many crimes in California can also be federal crimes such as narcotic sales and distribution, internet crimes, forgery etc. When these agencies investigate a case they do so with federal laws in mind and thus, bring their investigations to federal prosecutors.

In Mark Salling's case, if he is convicted in federal court, his mandatory minimum punishment of 5 years could be more than the maximum he would have faced in state court. Internet sex crimes are serious and anyone facing the same or similar charges should retain a competent child pornography attorney to represent them.

If you would like to speak to one of our attorneys regarding an internet sex crime case or investigation, please call (949) 558-0042 for your free consultation.