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Theranos founder Holmes ordered to jail after appeal snub

Decade or so in the clink begins April 27

Disgraced Theranos CEO Elizabeth Holmes' attempt to stave off her time behind bars has been rejected, with a federal judge denying her request to remain free on bail pending appeals and reaffirming the court's order for her to report for incarceration later this month. 

Holmes' appeal was denied by Judge Edward Davila of California's northern federal district court, who said that while she didn't pose a flight risk or threat to her community, she still failed to meet a burden that her appeal had raised "a substantial question of law or fact," and as such was unlikely to result in a reversal of her verdict or an order for a new trial.

In other words, she's out of time, out of excuses, and needs to be sent down.

Holmes was found guilty in January of last year and sentenced to more than 11 years in prison and three years of supervised release for her role in defrauding investors in Theranos, which claimed to have developed medical diagnostic equipment able to detect various diseases using just a few drops of blood. 

While she was facing 11 charges, Holmes was only found guilty of one count of conspiracy to commit wire fraud and three counts of wire fraud. She was found not guilty on four charges, and the jury was unable to resolve a further three counts. 

We also recall that Holmes bought a one-way ticket to Mexico in January after being found guilty, according to prosecutors.

In his order [PDF] denying Holmes' application to remain out on bail, Judge Davila said that requests for defendants to be released pending appeals have to satisfy four criteria, namely that they aren't a flight or safety risk, aren't appealing with intent to delay their sentence, that the appeal raises the aforementioned substantial legal or factual questions, and that the appeal is likely to result in a reversal or retrial. 

Holmes has already been denied a new trial, something Judge Davila pointed out in his decision. He stated that her previous arguments for a retrial were denied on "multiple grounds, any of which would have supported denial of the respective motion." 

Further, Judge Davila said, Holmes' current motion fails to respond to all the bases for the previous retrial denial. Given that, "the court cannot conclude that reasonable jurists would fairly debate these remaining issues when Ms. Holmes's Motion does not address all bases for the court's denials," the judge wrote. 

Citing her arguments that evidence in the case didn't accurately or reliably portray Theranos' technology, Judge Davila said even if Holmes succeeded in appealing the use of that evidence, it was unlikely to result in a reversal of her conviction. 

"Contrary to her suggestion that accuracy and reliability were central issues to her convictions, Ms Holmes's misrepresentations to Theranos investors involved more than just whether Theranos technology 'work[ed] as promised,'" the beak wrote in his decision. 

Judge Davila also rejected claims the court erred in rejecting former Theranos COO Ramesh "Sunny" Balwani's testimony as hearsay, and declared it was perfectly appropriate to exclude cross-examination questions of former Theranos lab director Adam Rosendorff's employment after leaving Holmes' collapsed firm. Judge Davila also said both claims would be insufficient to overturn the verdict. 

With her attempts to stay out of prison exhausted, Holmes will be required to surrender on April 27 to begin her 11-year sentence, and appeals will be decided while she's behind bars.

Balwani, who was found guilty of 12 counts (10 of wire fraud and 2 counts of conspiring to commit wire fraud) and ordered to serve 12 years and 11 months in prison beginning in early March, filed a last-minute appeal last month to have his prison sentence delayed as well.

Judge Davlia denied Balwani's motion on similar grounds to Holmes, namely that he didn't raise a substantial question of law or fact and that any appeals were unlikely to result in a reversal or new trial. The judge issued an order Friday for Balwani to surrender for his sentence on April 20. ®

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