Theranos founder Elizabeth Holmes sent to prison during appeal

SAN JOSE, Calif (CN) — A federal judge ordered Theranos founder Elizaebth Holmes to prison while she appeals her conviction on wire fraud counts. 

In 2022, a federal jury convicted Holmes of defrauding investors and misrepresenting the benefits of her now-defunct company's blood-testing device publicly, following a monthslong trial. 

Holmes lost a bid for a new trial in November, and had asked for a maximum of 18 months in confinement followed by community service — or no prison sentence at all — when she appeared in court the month before visibly pregnant. Instead, U.S. District Judge Edward Davila sentenced her to 11 years, which she sought to delay due to the birth of her second child.

Her attorneys told Davila that Holmes ought to be released pending appeal, in part because “there is no credible argument that Ms. Holmes is a flight risk or danger to the community.” They objected to the government calling Holmes a flight risk because her partner pays for family living expenses, and that she is dangerous because she holds patents she intends to work on in the future.

Federal prosecutors said Holmes can be out on bond but denied making explicit findings that she is not a flight risk. 

Davila did not indicate at a hearing in March which way he would swing on Holmes’ motion, and left her in limbo for several weeks. But in his order Monday, Davila said he does not consider Holmes to be a danger to the community if released as she was convicted of nonviolent "though nonetheless serious" crimes, and has demonstrated that she is not likely to flee if released. He accepted Holmes’ claim that her one-way ticket to Mexico that the government flagged was, “while ill-advised,” not an attempt to flee the country.

However, he said that he does not think Holmes has raised a “substantial question of law or fact” that is “likely to result in reversal or an order for a new trial of all counts” on appeal. He said he did not think Holmes’ reliance on questions about a key witness’s cross-examination will be sufficient, and reminded her that the denial of a new trial was based on the fact that he could not find that the jury’s verdict would have been any different, or warranted reversal of any count.

Davila said that even if the Ninth Circuit agrees with Holmes that he and the jury erred in their evidentiary rulings, “the mere fact that a purported error touched upon the accuracy or reliability of Theranos technology is not likely to support a finding that the jury’s verdict was materially affected, especially where the government had presented evidence of other misrepresentations unrelated to Theranos’s accuracy and reliability.”

He continued: “The court finds that a contrary appellate decision is not likely to require reversal or new trials on all investor fraud convictions and the conspiracy conviction," the judge said. "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.'"

Holmes must surrender to authorities before the end of April to begin her prison sentence.

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