No prison yet for Elizabeth Holmes following last-ditch appeal

Disgraced Theranos founder Elizabeth Holmes will not go to prison this week, despite a judge’s order that she begin serving her 11-year sentence on Thursday.

Late Tuesday, Holmes’ attorneys appealed that ruling to the U.S. 9^th Circuit Court of Appeals in San Francisco. Under the court’s rules, that means Holmes will remain free on bail for now.

A federal jury in San Jose convicted Holmes last year on four counts of defrauding investors in her failed blood testing company. In November, U.S. District Judge Edward Davila sentenced her to 11 years and 3 months in prison. Holmes’ attorneys asked that she be allowed to remain free on bail while she appeals her conviction, but earlier this month Davila denied that motion and ordered her to report to prison by April 27.

In their last-minute appeal, Holmes’ attorneys said Davila’s ruling contained “numerous, inexplicable errors,” including referring to “patient fraud counts” when Holmes was acquitted on the charges that she defrauded Theranos patients. They say she should be allowed to remain free while she appeals her conviction because the appeal is “likely to result in reversal.” The government has 10 days to respond to the motion.

Federal prosecutors have opposed Holmes’ efforts to remain free. In January, they argued Holmes was a flight risk, noting that she had booked a one-way flight to Mexico shortly before she was convicted. Davila agreed with defense lawyers that the plane ticket episode was merely an oversight, but he ruled that her appeal was unlikely to change the outcome of the case.

While Tuesday’s motion keeps Holmes out of prison for now, it may only be a brief reprieve. Holmes’ mentor and former boyfriend Ramesh “Sunny” Balwani, convicted in a separate trial last year, also sought to remain free pending his appeal, and he appealed to the 9^th Circuit when Davila denied his motion. But the appeals court turned down his request within 3 weeks. Last week, Balwani, 57, reported to a low-security federal prison in Los Angeles to begin serving his nearly 13-year sentence.

Holmes’ appeal of her conviction, filed last week, argues that Holmes could not have knowingly misrepresented her supposedly “revolutionary” blood testing technology to investors because she genuinely believed the product worked.

“Highly credentialed Theranos scientists told Holmes in real time the technology worked. Outsiders who reviewed the technology said it worked. Theranos’ groundbreaking developments received many patents,” the appeal said.

Her attorneys argued that the government’s case “largely parroted the public narrative,” first laid out in a series of negative Wall Street Journal articles in 2015, that Holmes knowingly committed fraud.

The appeal challenges multiple rulings by Davila on evidence and witnesses, including allowing a former Theranos lab director to testify as an expert witness. This week, the National Association of Criminal Defense Lawyers filed a brief in support of Holmes’ appeal.

The organization argued that the government abused the rules on expert testimony in Holmes’ case, and that it is part of a trend.

“This sleight of hand is, regrettably, common,” attorney Brian Goldman wrote. “The government has previously subverted the requirements of the federal rules, and blurred the distinction between expert and lay testimony.”

The government has until May 3 to respond to Holmes’ appeal of the conviction.