Convicted Theranos founder Elizabeth Holmes is asking the judge who presided over her trial and sentenced her last month to more than 11 years in prison to grant her freedom while she appeals her case.
In a court document filed Monday, Holmes’ lawyers offered three reasons in support of the former blood-testing company CEO's request to remain out of custody, despite San Jose, California U.S. District Court Judge Edward Davila’s order toFirst, they said, Holmes is neither a flight risk nor a danger to public safety. Second, they said, her appeal is not intended to delay her incarceration. And third, they argued that her appeal will present several substantial questions.
Former Theranos CEO Elizabeth Holmes on November 18, 2022 in San Jose, California. Holmes appeared in federal court for sentencing after being convicted of four counts of fraud for allegedly engaging in a multimillion-dollar scheme to defraud investors in her company Theranos, which offered blood testing lab services.
First, she could persuade Judge Davila – who also presided over the trial of her codefendant Ramesh “Sunny” Balwani who is set to face sentencing on 12 fraud convictions on Wednesday — that she deserves to stay out of custody while her appeal plays out in the higher court. If Judge Davila rejects such a request, Holmes can appeal to the 9th Circuit Court of Appeals, which is empowered to decide if she must report to prison or remain free as it considers the merits of her appeal.
“The judge may be amenable to sentencing her, but holding her at bay while her appeal grinds away,” Clark said. “Though the government's position on that is important, too.” Even the appellate court cannot overturn Davila’s sentence in the event that Holmes’ loses on appeal, unless the court finds that Davila miscalculated Holmes’ punishment under the U.S. Sentencing Guidelines.
Frenkel also pointed out that Holmes, in taking the stand during her trial, may have contributed to sealing her fate on appeal.
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