By Khorri Atkinson

Law360 (July 9, 2020, 5:38 PM EDT) -- A Virginia federal judge overseeing the government's case against allegedly illegal television and movie streaming services vowed to issue bench warrants for two people facing federal charges after they failed to show in court on Thursday.

Kristopher Lee Dallmann and Jared Edward Jaurequi were initially ordered to appear before U.S. District Judge T. S. Ellis III in Alexandria, Virginia, for allegedly violating the terms of their pretrial release and other matters in the case. Federal officials brought the suit last year, accusing them of running Jetflicks, an online subscription service headquartered in Las Vegas that cost television and movie copyright owners millions of dollars.

The defendants' attorneys informed the judge on Wednesday that American Airlines did not permit them to board their commercial flight from Las Vegas to Ronald Reagan Washington National Airport earlier that day, because the men had not yet received the results of their COVID-19 tests taken on July 1.

But Judge Ellis, who appeared irked by their absence, asserted during a brief teleconference hearing that they have repeatedly sought to use the coronavirus pandemic as grounds to seek an indefinite delay of their pretrial release violations hearing.

"They can't use this pandemic as an excuse" to not show up to court, the judge contended, later noting that the government has made "considerable" efforts to accommodate them and their witnesses. According to court documents, the government covered travel costs for both men, who said they're indigent.

Judge Ellis said counsel for the defendants can submit briefs concerning the bench warrants, but he repeatedly insisted the federal court will soon issue an order authorizing the U.S. Marshals Service to make the arrests.

"We need to get this done," the judge said, referring to his desire to hold a hearing on the alleged pretrial release violations. "I certainly do not want to ... endanger the health of Mr. Dallmann or Mr. Jaurequi. … I am sensitive to that, but I intend to issue bench warrants."

The men are among eight people indicted in August for allegedly running massive illegal television and movie streaming services that allowed users to stream and download copyrighted television programs without permission from the copyright owners. Federal prosecutors said the services' offerings surpassed the content of legitimate services, such as Netflix, Hulu and Amazon Prime Video.

The unlawful streaming services were designed to work on many types of devices, platforms and software, including smartphones, tablets, smart televisions, video game consoles, digital media players, set-top boxes and web browsers, according to the government.

In December, two of the men, Darryl Julius Polo and Luis Angel Villarino, pled guilty to criminal copyright infringement charges. According to the U.S. Department of Justice, the men admitted to separately working as computer programmers at Jetflicks and using automated software programs and other tools to obtain illegal content and make it available to subscribers in the U.S. and Canada.

In a filing on Thursday ahead of the hearing, prosecutors urged Judge Ellis to issue bench warrants for Dallmann and Jaurequi because they are violating their pretrial release and should be held accountable.

They wrote that Dallmann has been refusing to show up for random drug tests, call in for drug testing information and provide basic medical information or participate in supervision by videoconference. Jaurequi, who was detained twice for admitted drug use and failures to report to his pretrial services officer, later used methamphetamine twice earlier this year, according to the government.

"Worse, he continues to violate the conditions of his release by refusing to report and by ignoring the court's orders and instructions from his pretrial services officer," the filing added. "He may as well not be under any supervision at all."

Lead prosecutor Alexander P. Berrang of the U.S. Attorney's Office for the Eastern District of Virginia questioned the legitimacy of the men's reason for missing Thursday's hearing, saying this was their latest "gambit to avoid punishment and continue living in Las Vegas with no oversight."

To the government's knowledge, American Airlines does not bar people from flying merely because they have a pending COVID-19 test, Berrang said, and that since June 30, the airline has been asking travelers during check-in to confirm whether they have been free of COVID-19 symptoms for the past 14 days.

Moreover, the defendants did not even indicate in recent court filings if they've tested positive, experienced any symptoms associated with COVID-19 or they've been in contact with anyone who has tested positive, the government attorney wrote. 

"The fact both defendants sought testing for COVID-19 itself raises questions about what they are doing day-to-day. For instance, the defendants have refused to drug test apparently because they fear contracting COVID-19 while reporting to a particular testing facility. This is so despite the court issuing an order finding that the testing facility has a number of safeguards in place such that the defendants must provide urine samples as directed by their pretrial services officers," Berrang said. 

He added, "If the defendants have determined that their risk of contracting COVID-19 is so high that they cannot drug test at a facility with sufficient safety protocols, then the government expects they must be staying at home at all times and avoiding contact with anyone else. Yet, if they in fact are practicing such physical distancing, then they would have no need to test for COVID-19 given their lack of potential exposure to the disease."

During the hearing, Judge Ellis noted he had previously threatened to order their arrests, but counsel for both men reassured him they would voluntarily show. Now, the judge appeared to be losing patience.

Jaurequi's attorney did not respond to the judge.

Vernida Chaney of Chaney Law Firm PLLC, who is representing Dallmann, at one point asked whether the warrant will be served pending the court's consideration of her client's expected motion for reconsideration of that order. Chaney said the federal court is aware that Dallmann is suffering from a disease and is on medication, and that measures should be put in place to prevent his health from being compromised.

Judge Ellis acknowledged Dallmann "has a serious" health condition and the U.S. Marshals may have to detain him for an unspecified amount of him before he's brought to the court in Alexandria, Virginia. But he's "not going to get away with" the alleged violations against him, as the federal court has long ensured safeguards are being taken, the judge added. 

According to the docket, a jury trial in the case was initially set for February but has been pushed back to January due to court operational disruptions caused by the pandemic. Polo and Villarino are both scheduled to be sentenced the following month.

Dallmann is represented by Vernida Chaney of Chaney Law Firm PLLC.

Jaurequi is represented by John Obiora Iweanoge of Iweanoges Firm PC.

The government is represented by Alexander P. Berrang, Monika Moore and William Fitzpatrick of the U.S. Attorney's Office for the Eastern District of Virginia and Matthew A. Lamberti of the U.S. Department of Justice's Criminal Division, Computer Crime and Intellectual Property Section.

The case is U.S. v. Kristopher Lee Dallmann et al., case number 1:19-cr-00253, in the U.S. District Court for the Eastern District of Virginia.

--Additional reporting by Lauren Berg and Tiffany Hu. Editing by Nicole Bleier.

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