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Elizabeth Holmes is not going to prison – for the moment

Yes, launch another appeal, that'll do the trick

Elizabeth Holmes, the now-former CEO of the imploded blood-testing startup Theranos who was convicted of conspiracy and wire fraud over her role in defrauding investors, has managed to delay the start of her 11-year prison sentence, which was due to begin tomorrow. 

In a last-ditch appeal [PDF] to the Ninth Circuit Court of Appeals, Holmes' lawyers argued that Judge Edward Davila of California's Northern Federal District Court was wrong to deny Holmes' request to remain free on bail, as opposed to being behind bars, pending her appeal against her conviction. 

Per Holmes' lawyers, the Ninth Circuit's rules state that "if an appellant is out on bail at the time the motion is filed in this court, that bail will remain in effect until the court rules on the motion." By filing that bail appeal paperwork while out on bail, Holmes therefore remains free on bail and that postpones her scheduled detention.

"Ms Holmes filed her motion for release pending appeal in the Ninth Circuit on April 25 … Ms Holmes was on bail at the time the motion was filed. Therefore, that bail automatically remains in effect until the Ninth Circuit has ruled on her motion," her lawyers added. 

Holmes' team argued her conviction "resulted from prejudicial errors that warrant reversal and a new trial." They cite a number of instances they say violated Holmes' rights in court, including permitting the government to prove its case of Holmes misrepresenting Theranos' technology "with undisclosed and untested expert analysis based on lost data, regulatory findings and evidence that Theranos voided test results." 

The appeal also mentions the court having possibly violated Holmes' right to confrontation "by precluding cross-examination on a key witness' credibility," and that the court abused its discretion by excluding prior testimony from Ramesh 'Sunny' Balwani, Holmes' co-defendant in the case, in which he accepted sole responsibility for Theranos' financial model. 

Holmes' team also pointed to "numerous, inexplicable errors" in Judge Davila's decision earlier this month ordering Holmes to prison because she failed to raise any substantial question of law or fact, and was thus unlikely to succeed in getting her verdict overturned in a new trial.

The disgraced exec was also said to have booked a one-way ticket to Mexico soon after she was found guilty.

Holmes' lawyers say that Davila's decision mentioned "patient fraud convictions" despite Holmes being acquitted on those counts and that the court claimed evidence related to Theranos technology didn't pertain to her conviction "despite the indictment's charge that Holmes misrepresented [the tech] to investors." 

The ex-Theranos CEO's legal team also claimed that the court dismissed the critical nature of an expert's testimony "despite relying on [it] when denying Holmes' motion for judgment of acquittal" and also claim the court used the wrong legal standard to determine that Holmes' appeals were unlikely to reverse the verdict.

Will it work?

While Holmes may have managed to postpone trading her black turtleneck for an orange jumpsuit, the appeal filed yesterday may still not save her from ending up behind bars, as was the case with Balwani. 

Like Holmes, Balwani appealed to the Ninth Circuit Court of Appeals to postpone his prison sentence, which was scheduled to begin on March 16. It took until April 6 for the Ninth Circuit to return its decision [PDF] that Balwani "had not shown the appeal raises a 'substantial question' of law or fact," and thus was unlikely to result in a reversal of the verdict. Balwani was subsequently ordered by Davila to report to prison on April 20, which he did, beginning his 12 year, 11 month sentence last Thursday.

Whether Holmes' appeal to the Ninth Circuit will result in a different outcome remains to be seen; the government has until May 3 to respond to Holmes' appeal of her 11-year sentence. ®

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