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May 16, 2023

Ninth Circuit panel rules that Elizabeth Holmes cannot stay out on bail while her appeal is pending

As reported in this new AP article, "Theranos CEO Elizabeth Holmes appears to be soon bound for prison after an appeals court Tuesday rejected her bid to remain free while she tries to overturn her conviction in a blood-testing hoax that brought her fleeting fame and fortune." Here is more:

The Ninth Circuit Court of Appeals ruling comes nearly three weeks after Holmes deployed a last-minute legal maneuver to delay the start of her 11-year prison sentence.  She had been previously ordered to surrender to authorities on April 27 by U.S. District Judge Edward Davila, who sentenced her in November.

Davila will now set a new date for Holmes, 39, to leave her current home in the San Diego area and report to prison. The punishment will separate Holmes from her current partner, William “Billy” Evans, their 1-year-old son, William, and 3-month-old daughter, Invicta.  Holmes’ pregnancy with Invicta — Latin for “invincible,” or “undefeated” — began after a jury convicted her on four counts of fraud and conspiracy in January 2022.

Davila has recommended that Holmes serve her sentence at a women’s prison in Bryan, Texas.  It hasn’t been disclosed whether the federal Bureau of Prisons accepted Davila’s recommendation or assigned Holmes to another facility.

Holmes’ former lover and top lieutenant at Theranos, Ramesh “Sunny’ Balwani, began a nearly 13-year prison sentence in April after being convicted on 12 counts of fraud and conspiracy last July in a separate trial.  Balwani, 57, was incarcerated in a Southern California prison after losing a similar effort to remain free on bail while appealing his conviction....

Holmes’s lawyers have been fighting her conviction on grounds of alleged mistakes and misconduct that occurred during her trial.  They have also contended errors and abuses that biased the jury were so egregious that she should be allowed to stay out of prison while the appeal unfolds — a request that has now been rebuffed by both Davila and the Ninth Circuit Court of Appeals.

Some prior related posts:

May 16, 2023 at 09:58 PM | Permalink


I have to suspect this was always a long shot. Just what percent of out-on-bail-while-appeal-pending motions actually succeed?

Posted by: Soronel Haetir | May 17, 2023 11:55:40 AM

As I understand, petitions to remain free on bail while pending appeal are not often successful. The presumption weighs heavily against the petitioner. She'd need to show a very likelihood of success on appeal.

Posted by: Marc Shepherd | May 17, 2023 6:29:57 PM

To obtain release from detention pending appeal, a defendant must show, pursuant to 18 U.S.C. section 3143, that there is a "substantial question of law or fact" that on appeal is likely lead to a reversal, the granting of a new trial, or a reduction in sentence. See also, section 3145(c) (exceptional reasons justifying release pending appeal). Elizabeth Holmes simply can't satisfy those standards.

Posted by: Jim Gormlley | May 17, 2023 10:01:47 PM

Ms. Holmes is almost enough to make me embarrassed to have gone to Stanford.

Posted by: Bill Otis | May 17, 2023 10:51:58 PM

Bill Otis: Some graduates of every college and university in America, including law school grads, end up being prosecuted criminally, by both the state and Federal governments. I have long wanted to do research on and write about how law school grads get themselves into criminal troubles, usually resulting in the loss of their licenses to practice law. I think the results would yield information that could be used in law school ethics classes to highlight possible traps and problems for law school grads to be aware of and avoid in their practices and personal lives. For example, I am aware of a law school grad who became addicted to narcotics and then swapped his legal services to a drug dealer for drugs to satisfy his addiction. He ended up being prosecuted and lost his law license.

And then there is the bizarre example of U.S. District Judge Jack Camp, from the Northern District of Georgia, who ended up with a drug addicted stripper girl friend, who he helped buy drugs; and he brought 2 pistols to the drug deals to protect her in case anything went wrong. The Judge had been married to the same wife for 35 years. His stripper girl friend became a Government informant and wore a wire on Judge Camp, which recorded him talking about why he had brought his pistols with him. Judge Camp later claimed Diminished Capacity [U.S. Sentencing Guidelines, sec. 5K2.13], due to a head injury from a bicycling accident a year or 2 earlier. Conspicuously, the Federal prosecutors did not charge Judge Camp with using or carrying a firearm in connection with a drug crime, which would have carried a 5 year consecutive sentence. They let him plead guilty to an offense involving the girl friend having use of and access to his U.S. District Court laptop computer! As I recall, Judge camp got probation and supervised release time, but avoided any prison time; and he had to resign and retire as a U. S. District Judge -- he still got his pension. Do you think it is worth studying how law school grads get themselves into criminal problems, both related to their work and in their personal lives?

Posted by: Jim Gormley | May 18, 2023 11:46:53 AM

Sometimes the law is a mystery to those who are governed by it. There is so much "law" that it is incomprehensible. Case law piles on top of itself and finding the key to freedom resembles a parlor trick. Real people wait for the verdict.

This makes us all suspicious about the Rule of Law -

Persons, institutions and entities are accountable to laws that are: Publicly promulgated - Equally enforced - independently adjudicated and consistent with international human rights principles.

Posted by: beth curtis | May 18, 2023 1:02:45 PM

As an aside, I just wanted to clarify the law (or, at least, the "law on the books") in the Ninth Circuit on bail pending appeal motions.

The Ninth Circuit has (correctly) interpreted the phrase "substantial question of law or fact likely to lead to reversal [etc]" to embody a "fairly debatable" standard. U.S. v. Handy, 761 F.2d 1279 (9th Cir. 1985), explains that "substantial question of law or fact" refers to the "level of merit" the question needs to present; "likely to lead to reversal" refers to the action the court would take *if* they resolve the appeal in the defendant's favor. It further explains that a "substantial question of law or fact" is a "fairly debatable" question, which is not a particularly high standard and simply requires a showing that the issue on appeal is debatable among "jurists of reason." (This is the correct interpretation because the contrary reading --- that the defendant needs to show that they are likely to prevail --- makes "substantial" superfluous.)

So to satisfy this prong of the bail-pending-appeal statute, a defendant need only show that they present a fairly debatable question that, if resolved in their favor, would likely lead to reversal etc. etc. In practice, though, courts of appeal tends to defer to district courts' rulings on bail-pending-appeal decisions, so --- given that most folks are petitioning the circuit for bail-pending-appeal only after losing before the district court --- I expect it's pretty rare for the court of appeals to grant bail pending appeal.

Posted by: mp | May 19, 2023 10:55:51 AM

To give you an idea how rare it is for a Federal criminal defendant to be granted bail pending appeal, we can look at what percentage of Federal criminal appeals result in any relief for the defendants. About 5.2% of Federal criminal appeals result in a defendant receive some form of relief, most of which is only sentencing relief. It is rare for a Federal conviction to be reversed on appeal (such as recently happened in the two 1st Circuit Varsity Blues cases involving Abdelaziz and Wilson (consolidated for appeal) (college admissions scandal, where Circuit Court held that college admissions slots do not constitute "property". In about half of these cases, the Judge reimposes the same sentence that was reversed, but justifies it better the second time, so it will stand up on the second appeal. So, only about 2.6% of appeals result in any real net benefit to the defendants. The truth is that at least 90% of Federal defendants don't even ask for bail pending appeal; in many of those cases, bail is not really available anyway, because of presumptions for incarceration, except in the most exceptional circumstances. So, maybe 8% of Federal criminal defendants seek to avoid incarceration and remain free while their appeals are litigated.

Posted by: Jim Gormley | May 19, 2023 12:31:52 PM

For an extraordinary Federal criminal appeal (following a 7 week long trial in District court), read "United States v. Douglas C. Adams", 722 F.3d 788 (6th Cir. 2013), where all convictions for all 8 defendants were vacated and the case was remanded for a new trial. Elizabeth Holmes is unlikely to get this result. Following remand, the Government entered into plea agreements with all of the defendants (many for the time they had served in prison during the first appeal), rather than re-try the 7 week long case.

Posted by: Jim Gormley | May 19, 2023 1:41:35 PM

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