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Elizabeth Holmes Looks to Stay Out of Prison Pending Theranos Fraud Appeal, Cites ‘Soon-to-Be-Born Child’

Former Theranos CEO Elizabeth Holmes leaves federal court with her legal team after a status hearing on July 17, 2019 in San Jose, Calif. (Photo by Kimberly White/Getty Images)

Former Theranos CEO Elizabeth Holmes leaves federal court with her legal team after a status hearing on July 17, 2019 in San Jose, Calif.

Elizabeth Holmes is asking to stay out of federal prison as she appeals her convictions in the Theranos investor fraud, citing her “strong ties to her partner and family, including her son and soon-to-be-born child.”

U.S District Judge Edward J. Davila in San Jose, California, on Nov. 18 ordered the 38-year-old Holmes to report to the Bureau of Prisons on April 27 to begin her 11-year-sentence. But her lawyers have appealed her convictions to the 9th Circuit Court of Appeals, and they say the complexity of the case, coupled with Holmes’ lack of a flight risk and danger to public safety, warrants her continued freedom.

“Ms. Holmes did not flee during the pendency of her case; did not flee in the immediate aftermath of her conviction or sentencing; and no evidence suggests she will flee while she pursues her appeal,” according to a 21-page motion filed late Monday. “She has strong ties to her partner and family, including her son and soon-to-be-born child, that incentivize her to comply with her conditions of release.”

A jury convicted Holmes of three counts of wire fraud and one count of conspiracy to commit wire fraud on Jan. 3. Prosecutors asked Davila to sentence her to 15 years, while Holmes’ attorneys asked for home confinement or a minimal term of 18 months in prison. Davila instead sentenced her to 135 months, which is 11.25 years.

Holmes’ attorneys filed their notice of appeal to the 9th Circuit on Dec. 2. They have until March 3 to file their opening brief, and prosecutors have until April 3 to file theirs. Holmes has 21 days from then to file an optional reply.

The motion filed Monday with Davila says the appeal “is not for the purpose of delay,” but rather to “raise substantial questions of law or fact that, if successful, would mandate a new trial.” The brief identified several issues, including Davila’s allowance of what her lawyers say was “expert testimony disguised as fact testimony,” the admission of of certain reports and other evidence and the exclusion of deposition testimony from Holmes’ ex-boyfriend and business partner Ramesh “Sunny” Balwani, her co-defendant who is awaiting sentencing. They also plan to argue Davila errored when denying Holmes’ motions for new trial, including her motion over the surprise visit to her home by key witness Adam Rosendorff, Theranos’ former lab director.

“If Ms. Holmes prevails on appeal, a new trial will undoubtedly be required,” according to the motion.

The motion concludes by emphasizing Holmes “is neither a flight risk nor a threat to the community.”

“This case has a lengthy, complex record for which there are numerous substantial issues to be addressed on appeal which, if decided in her favor, would require a new trial,” the motion reads. “Ms. Holmes has remained in constant contact with counsel throughout this case. Release will facilitate Ms. Holmes’ continued communication with her counsel concerning these issues and the merits of her appeal.”

Holmes’ supporters included Sen. Cory Booker (D-N.J), who wrote a letter to Davila on her behalf.

Read the full motion here.

[Image via Kimberly White/Getty Images]

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A graduate of the University of Oregon, Meghann worked at The Spokesman-Review in Spokane, Washington, and the Idaho Statesman in Boise, Idaho, before moving to California in 2013 to work at the Orange County Register. She spent four years as a litigation reporter for the Los Angeles Daily Journal and one year as a California-based editor and reporter for and associated publications such as The National Law Journal and New York Law Journal before joining Law & Crime News. Meghann has written for The Washington Post, Los Angeles Times, The New York Times, Los Angeles Magazine, Bloomberg Law, ABA Journal, The Forward, Los Angeles Business Journal and the Laguna Beach Independent. Her Twitter coverage of federal court hearings in a lawsuit over homelessness in Los Angeles placed 1st in the Los Angeles Press Club's Southern California Journalism Awards for Best Use of Social Media by an Independent Journalist in 2021. An article she freelanced for Los Angeles Times Community News about a debate among federal judges regarding the safety of jury trials during COVID also placed 1st in the Orange County Press Club Awards for Best Pandemic News Story in 2021.