Concurrent Jurisidiction | Child Pornography Defense Blog

Concurrent Jurisdiction: Possession of Child Pornography

Child Pornography Attorney

This post will analyze the concurrent jurisdiction of state and federal courts for cases involving child pornography.  For other posts written by our child pornography attorneys, go to our page devoted to child pornography.

The federal courts have sole jurisdiction over criminal cases involving violations of federal law or the Constitution.  The federal court system was originally designed to prosecute a few select criminal offenses.  The Constitution foresaw a small role for the federal government in regulating social behavior within state boundaries.  As Congress began to expand their regulation of social behavior and economic activity within state borders, the list of criminal statutes grew.  The Constitution requires the federal government to link all regulatory activity to an enumerated power under Article I.  Often, criminal statutes are rooted in Congress’ role in regulating activities which affect interstate commerce.  The interstate commerce clause has laid the foundation for numerous federal criminal statutes, including regulating possession of marijuana within state borders.  Wickard v. Filburn, 317 U.S. 111 (1942).

Generally, most criminal offenses are still solely regulated by the states.  The offenses of murder, sexual assault and burglary are solely prosecuted in state court (unless some extenuated circumstance exists – the offense was committed by a criminal street gang under the RICO statute).

Most citizens view the state and federal courts as two distinct entities which criminalize different behavior.  Often, federal court is associated with white collar crime while the state courts are linked to common street crimes.  Today, this separation is far from distinct.  The federal and state courts maintain concurrent jurisdiction over numerous criminal offenses in the United States: 1) crimes that occur at federally insured institutions– bank robbery, 2) illegal businesses which necessarily affect interstate commerce – drug trafficking, sex trafficking, and gambling offenses, and 3) crimes where the defendant uses the internet or other national wire to commit the offense – possession of child pornography, identity theft, money laundering, and various forms of criminal fraud.

Under concurrent jurisdiction, both the state of Texas and the federal government have instituted laws criminalizing the conduct.  The state and federal government can charge a defendant with sex trafficking, drug trafficking, bank robbery, possession or distribution of child pornography, and Medicaid fraud.

Double Jeopardy

Concurrent jurisdiction raises issues with the double jeopardy protections of the 5th Amendment.  Under the 5th Amendment to the United States Constitution, a person cannot be tried for the same criminal offense twice: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”  This guarantee prevents a state or federal court from putting a person to trial following an acquittal.  Put differently, if a defendant is found not guilty of murder in a state court, the district attorney’s office is barred from charging and retrying that defendant for the same offense.  The protection applies equally to persons charged in federal court.

This leaves open whether the double jeopardy clause prevents the federal government from trying a person who committed the same crime previously charged in state court.  For example, can a defendant be acquitted of possession of child pornography in state court and later be tried in federal court for the same offense?  The courts of appeals have ruled the state and federal governments are two distinct entities.  The double jeopardy clause would not bar the federal government from retrying a defendant for the same conduct after a state acquittal. As discussed below, this is normally not an issue in real practice, but certainly an underlying rule which must be considered when representing clients charged with these types of offenses.

Concurrent Jurisdiction in Practice

Normally, the state and federal government do not pursue convictions for the same conduct.  If the federal government decides to charge a defendant, the state will normally relax their position.  If charges have already been filed in state court, state prosecutors will stand down by dismissing existing charges or resetting the case until the federal prosecution has run its course.  If the punishment received in the federal case is adequate, the state authorities will often dismiss the state case.  If the federal government moves first, the state is likely not going to pursue charges for the offense.  Though this is the normal practice, there are caveats to every rule depending on the county of state prosecution.

The federal government normally saves their resources for egregious cases.  For example, the federal government is unlikely to pursue criminal charges for possession of child pornography if the number of images is low.  If a defendant has 50 images on his computer, the federal government will often leave the case to state prosecution.  However, if the investigation uncovers 50,000 images on a defendant’s computer, the federal government is likely to step in and take over.  The egregiousness analysis is done in most federal prosecutions.  The federal government has a finite number of resources, and attempts to use those resources on meaningful cases.

Possession and Distribution of Child Pornography – State v. Federal Charging

The state and federal systems criminalize the possession of child pornography.  This section will review statutory elements of the offense and punishment in both jurisdictions.

Federal Statute and Punishment

18 U.S.C. § 2252A criminalizes the possession and distribution of child pornography under federal law.  The elements of the offense are outlined as follows:

Possession of child pornography occurs if a defendant: 1) knowingly possesses, or knowingly accesses with intent to view, 2) any book, magazine, periodical, film, videotape, computer disk, or any other material, 3) that contains an image of child pornography, 4) that has been mailed, or shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in or affecting interstate or foreign commerce by any means, including by computer. 18 U.S.C. § 2252A(a)(5).

This statute applies the interstate commerce jurisdictional nexus discussed above.  It is clear under 18 U.S.C. § 2252A that almost any possession of child pornography will fall under federal jurisdiction.  The jurisdictional requirements would include any photo received over the internet (which encompasses 99% of cases) or any photo captured using a piece of equipment that was mailed or transported in interstate commerce (all cameras would fit this definition).  It is hard to imagine a possession of child pornography case that would not fall under one of the two jurisdictional requirements.

If the defendant is convicted of possession of child pornography the range of punishment is 0-10 years in prison and a fine under the statute.  For a thorough review of the sentencing guidelines relating to possession of child pornography, click here.

Distribution of child pornography occurs if a defendant: 1) knowingly receives or distributes—

A) any child pornography using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce by any means, including by computer; or B) any material that contains child pornography using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce by any means, including by computer.

The distribution statute criminalizes sending child pornography by mail or over the internet.  The defendant’s use of a peer to peer network is often the source for distribution charges.  For an overview of the law surrounding peer to peer distribution, refer to this prior post.  A conviction for distribution of child pornography carries a punishment range of 5-20 years in prison and a fine under the statute.

Child pornography is defined under federal law as a photograph or other visual depiction that contains a minor (under 18 years of age) engaging in sexually explicit conduct.  Sexually explicit conduct includes intercourse and lascivious exhibition of genitals.

Texas Statute and Punishment

Possession of child pornography is criminalized under § 43.26 of the Texas Penal Code.  There is no distribution statute in the state of Texas.  Under § 43.26, a defendant commits the offense of possession of child pornography if the criminal defendant: 1) knowingly or intentionally, 2) possesses, or knowingly or intentionally accesses with intent to view, 3) visual material 4) that visually depicts a child younger than 18 years of age at the time the image of the child was made 5) who is engaging in sexual conduct.

The Texas statute is very similar to the federal statute absent the jurisdictional requirements.  The verbiage is a little different, but the differences do not change the base facts that must be proven by the prosecuting authority.  Possession of child pornography is a third-degree felony (if the defendant has no prior criminal history) in Texas, and the range of punishment for each image is 2-10 years in prison.  Convictions in either jurisdiction trigger lifetime sex offender registration.

Child Pornography Lawyer

If Convicted, Prison Time is Common for Child Pornography Cases

The punishment ranges under both state and federal law seem similar, but there are a few distinctions that need to be made.  If a criminal defendant is charged in federal court, the number of images is likely going to be high.  Low image cases are not normally prosecuted by the federal government.  The sentencing guidelines (as discussed in this previous post) prevent probation in almost every federal child pornography case.  It is much more likely the defendant will be facing somewhere between 6-10 years in prison for possession of child pornography and 10-12 years in prison for distribution of child pornography.

These numbers assume that a conviction is obtained under the indictment.  There are various defenses to these allegations, including challenging the knowledge element and raising Fourth Amendment challenges to the search of the defendant’s electronics.  The point that needs to be made is child pornography cases are very high stakes in federal court.  And most defendant’s charged with child pornography offenses have no prior criminal history.

The state system can produce better results.  Punishment in the state system is not handcuffed by the sentencing guidelines.  A defendant can plead guilty and request a probation from the district court.  Or probation can be obtained through plea negotiations with the state prosecutor.  In years past, it was not uncommon for a defendant charged with possession of child pornography to be given a lengthy probation sentence in state court. However, the local district attorney’s offices are now shying away from this practice.  And in many cases, they are choosing to ratchet up the punishment.  The use of motions to stack to enhance punishment for state child pornography cases is discussed in detail here.

Another important consideration is the lack of parole in the federal system.  If a defendant receives a 12-year sentence, they are likely to be imprisoned for 10-11 years before release.  In the state of Texas, possession of child pornography only requires the defendant to serve approximately one-eighth of their sentence before they are eligible for parole.  A defendant is not guaranteed parole at that time.  However, it is highly likely a defendant will serve less time under a state conviction than one in federal court.


Child pornography cases provide the perfect backdrop for comparing state and federal jurisdiction.  It is one of the few crimes where we consistently see simultaneous charging in state and federal court.  Often this takes the form of attending state court settings for many months prior to federal agents executing an arrest warrant.  At that time, the defendant can expect the federal system to take over.  The state is likely to stand down while the criminal process plays out in the federal forum.  If prison time is obtained in federal court, the state case will likely be dismissed.

At our firm, we try our best to keep the federal government from taking over.  The sentencing guidelines, and lack of parole, make the federal system a harsher environment for sentencing.  Our goal is always to beat the case, but the reality is that some defendant’s will have to plead guilty to mitigate the punishment risk.  The facts in some cases justify that action.  Given those truths, we always prefer to remain in a state court to ensure the best possible result.