« Reminders of upcoming events on Ohio SB 288 and "Frankel at 50" | Main | "Is Expanding Eligibility Enough?: Improving Record Sealing Access and Transparency in Ohio Courts" »

April 11, 2023

Federal judge denies Elizabeth Holmes motion to remain free pending her appeal of fraud convictions

As reported in this new Bloomberg piece, "Elizabeth Holmes must report to prison as scheduled later this month, a judge ruled, rejecting her request to remain free on bail as she appeals her fraud conviction."  Here is more:

The decision Monday by US District Judge Edward Davila in San Jose, California, is likely his last in the case which he’s handled since Holmes was indicted in 2018. Davila presided over the Theranos Inc. founder’s four-month trial in 2021 and sentenced her in November to serve 11 1/4 years of incarceration for deceiving investors in her blood-testing startup.

Legal experts said Holmes’s bid to remain free during an appeals process that might take two years was a long shot. She’s expected to make one final request for bail from the San Francisco-based federal appeals court, which she has also asked to overturn her conviction.

Davila ruled that even if Holmes won an appeals court ruling overturning his decisions to allow evidence challenging the accuracy and reliability of Theranos’s technology, she had deceived investors in so many different ways that such a decision isn’t likely to require a reversal or new trial on all the fraud counts she was convicted of. “Whether the jury heard more or less evidence that tended to show the accuracy and reliability of Theranos technology does not diminish the evidence the jury heard of other misrepresentations Ms. Holmes had made to investors,” he wrote.

To justify her request for bail, Holmes said she has two young children, continues to work on new inventions, and has raised “substantial questions” of law or facts in her appeal that could win her a new trial. At a hearing last month, Davila was most interested in an argument prosecutors made that there’s a risk Holmes might try to flee, based on a one-way plane ticket to Mexico that was purchased while she was on trial....

“Booking international travel plans for a criminal defendant in anticipation of a complete defense victory is a bold move, and the failure to promptly cancel those plans after a guilty verdict is a perilously careless oversight,” Davila said of the plane ticket. The incident invited “greater scrutiny” of Holmes, he wrote, adding that he concluded the purchase “while ill-advised, was not an attempt to flee the country.”...

Davila previously denied a request for bail pending appeal sought by Ramesh “Sunny” Balwani, the former president of Theranos and Holmes’s ex-boyfriend who was sentenced to 13 years in prison for his fraud conviction. The appeals court upheld Davila’s decision.

This latest ruling in US v. Holmes, which runs 11 pages, can be found at this link.

Some prior related posts:

April 11, 2023 at 08:17 AM | Permalink


I am not saying she is not guilty, but how does it help the investors of Theranos or anyone else to put Holmes away for 11 years? What kind of danger does she present to people? I am sure even one year of prison would teach her that she should never do what she's done. Anything more is just plain torture, and whoever enjoys witnessing that needs mental health treatment. It's beyond sad to see how punitive the justice system is in this country.

Posted by: Anya | Apr 11, 2023 2:32:44 PM

Anya, after practicing criminal defense for more than 30 years, I know how you feel; but there really is nothing new under the sun: See Michael Tonry, The Handbook of Crime And Punishment (Oxford Press 1998) paperback ed. at page 3 (“Contemporary policies concerning crime and punishment are the harshest in American history and of any Western country.”)

Posted by: Michael R. Levine | Apr 11, 2023 7:17:33 PM

Anya: I have experienced the extreme harshness of the Federal criminal justice system myself. I had a client in my law practice, who turned out to be a con man. From practicing law and using my legal skills, I was convicted of being his aider and abettor and conspiring with him, after a 17 day trial. See, United States v. Bollin, 264 F.3d 391 (4th Cir. 2001). I served 8 years in prison. My daughter was just 6 months old when I was sentenced. My wife divorced me and I have never seen my daughter again. I never had any interest in my clients' financial deal, and was simply paid hourly attorney's fees and expense reimbursements. At sentencing, my attorney told the Court that I had led an exemplary life to that point, putting myself thru elite university and law school, and paying off my student loans 3 years early. My local counsel had practiced in both the U. S. Attorney's Office and a large private practice firm with the U.S. Attorney; he told her to her face in her office that she had convicted and innocent man. He invited her to come to the jail and talk to me, ask me any questions she wanted, but she refused. She sent a letter to the Bureau of Prisons, saying that she was afraid if me, and asked them to keep me behind wire for my time in prison. Because of her letter, I served time in a maximum security penitentiary for white collar crimes, and was never sent to a camp (even though I had Camp-level security points). Only criminal defense lawyers understand the extreme harshness of the system. The public does not really understand. They don't care about people or families.

Posted by: Jim Gormley | Apr 11, 2023 9:54:43 PM

People who have not litigated Federal criminal cases do not understand how difficult it is to obtain an appellate bond for a defendant under 18 U. S. Code section 3143, so that they don't have to report to prison and begin serving their sentence while the appeal is pending. The defendant must show a "substantial issue of law or fact" that is likely to result in a reversal of the convictions, the granting of a new trial, or a reduction in the sentence. Numbers from the Federal Bureau of Justice Statistics indicate that criminal defendants obtain relief in only 2.6% of all appeals. In 50% of those cases, the relief only affects the sentence, and the District Judge re-sentences the defendant to the same amount of time, but justifies the sentence better the second time, so that it will hold up on appeal.

Posted by: Jim Gormley | Apr 11, 2023 11:11:51 PM

Appellate decisions like United States v. Adams, et al., 722 F.3d 788 (6th Cir. 2013), where all convictions of all 8 defendants were reversed following a 6 week long trial, and a new trial was ordered are extremely rare. In that case, the District Judge admitted evidence of drug dealing in what was really a vote buying case. The Government's theory was that some of the money from selling drugs was used to buy votes; but the Government could not connect up $1 of drug proceeds with the purchase of a single vote. The introduction of the drug dealing evidence was highly prejudicial to the defendants' rights to a fair trial on vote buying, given that the Government couldn't connect up even $1 of drug proceeds to the purchase of a single vote. Upon remand, the trial judge, Danny Reeves (who has been a member of the U. S. Sentencing Commission) recused himself from the re-trial. The Government negotiated plea agreements with all 8 defendants (some for time already served while the case was on appeal), rather than hold another 6 week long trial. This is a one of a kind opinion, well worth reading.

Posted by: Jim Gormley | Apr 11, 2023 11:35:02 PM


Sorry, were it up to me she would have faced execution. As I see things she got off light.

Posted by: Soronel Haetir | Apr 11, 2023 11:56:30 PM

Soronel Haetir,

I hope and pray that the intent of your statement is to express your strong feelings, and/or perhaps you are trolling for shock value, and that you would never truly advocate for such an extremely senseless and cruel punishment. If, on the other hand, you are indeed serious, then in my opinion, you are badly in need of professional help, with all due respect.

Posted by: SG | Apr 12, 2023 2:57:01 AM

Anya - there are 3553(a) factors here the court considers, and yes restitution is one of them, but I'd point out the nature and circumstances of the offense and history and characteristics of the defendant far outweigh "helping investors." You asked - "What kind of danger does she present to people?" Well, for one she presents a financial danger - a danger that can be repeated. For some financial victims, this and similar crimes will alter their financial lives forever.

Posted by: atomicfrog | Apr 12, 2023 7:04:40 AM


I have long advocated that all offenses more serious than the theft of a couple hundred dollars should carry a presumptive death sentence and that it should be up to the convict to plead why they, in particular, are undeserving of that fate. Barring that, I am willing to settle for long-term incarceration.

I do not believe that the US has an over-incarceration problem but, rather, one of under-incarceration.

Posted by: Soronel Haetir | Apr 12, 2023 8:19:34 PM

And if the human being is incapable of articulating a defense for their alleged transgression due to, as an example, schizophrenia or similar condition, what then? Place them in solitary confinement for twenty days until they die, as was recently done? Cruel and unusual punishments are prohibited even against people you hate or find reprehensible. Advocation for the placement of the burden of proof onto the accused is, and I’m trying to be civil here, not normal nor rational, and no intelligent legal professional would take such a notion seriously.

Posted by: SG | Apr 13, 2023 4:09:32 PM

SG --

"And if the human being is incapable of articulating a defense for their alleged transgression due to, as an example, schizophrenia or similar condition, what then?"

Then there will be no trial, since a person unable to participate in his defense cannot be tried. This is long-settled law.

Of course, the situation you postulate is very rare. The far more typical problem is not that the defendant is sick. It' that she's enormously greedy and crooked, like Ms. Holmes.

She could have acted much differently and still made a boatload of money. She chose cheating instead. You make your own bed, lie in it.

Posted by: Bill Otis | Apr 13, 2023 7:39:29 PM


Once again, I find myself in agreement with you, but only in part.

You are absolutely correct as to 'make your own bed', etc., but this applies only to the determination of guilt or innocence.

As to mental health litigation, during my career, I had several murder cases in which the mental health of the defendant was at issue, including various forms of dissociative disorders and schizophrenia (schizoaffective, schizo NOS, hebephrenic, simple schizophrenia, multiple personality, etc). In each and every case, the prosecutor sought to dispute the diagnosis of the defendant's alienist. It is common and expected.

As to appropriate punishments, we find ourselves at odds. Long-term incarcerations are notoriously ineffective and unecessary especially for those who are non-violent/ first time offenders. This applies to a number of non-white collar crimes such as that of Ms. Holmes. I am referring to drug offenses, pornography possession offenses, environmental violations, etc.). Twenty years in prison for first time possession (only) of some morally offensive pictures, no matter how egregious you may try to paint it, does not justify this type of penalty. I know you and others will take the other point of view and I am very familiar with the argument. I will therefore not need a lecture in that regards (but I suspect it's likely coming none-the-less.
Have at it).

Posted by: SG | Apr 13, 2023 10:10:06 PM

Good post SG. As long as we have a hyper-punitive justice/sentencing system, Holmes' sentence is fair and just.

If I'm going to single out a sentence, or a group of them, for their harshness, Elizabeth Holmes' sentence would not be among them.

Posted by: Fat Bastard | Apr 18, 2023 11:29:26 PM

Hopefully the Hater destroyed what credibility he has remaining on this thread with the kill em all let God sort em out argument.

Posted by: Fat Bastard | Apr 18, 2023 11:30:41 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB