Elizabeth Holmes asks to be released from prison pending appeal

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

Elizabeth Holmes asks to stay out of federal prison while she appeals her conviction in the Theranos investor scam, citing her “strong bonds with her partner and family, including her son and soon-to-be child.”

US District Judge Edward J Davila in San Jose, California, on November 18 ordered 38-year-old Holmes to report to the Bureau of Prisons on April 27 to start her 11-year sentence. But her attorneys have appealed her convictions to the Ninth Circuit Court of Appeals, and they say the complexity of the case, coupled with Holmes’s lack of a flight risk and threat to public safety, justifies her continued freedom.

“MS. Holmes did not flee while her case was pending; did not flee immediately after her conviction or sentencing; and no evidence suggests she will flee while she pursues her appeal,” reads a 21-page filing, which was filed late Monday.”She has strong ties with her partner and family, including her son and their soon-to-be child, which encourage her to honor her release conditions.”

A jury convicted Holmes on January 3 of counts of three counts of wire fraud and one count of conspiracy to commit wire fraud. Prosecutors asked Davila to sentence her to 15 years, while Holmes’ attorneys asked for house arrest or a minimum sentence of 18 months in prison. Instead, Davila sentenced her to 135 months, or 11.25 years.

Holmes’ attorneys filed their appeal in the 9th Circuit Court on December 2. They have until March 3 to submit their opening brief and prosecutors have until April 3 to submit theirs. Holmes has 21 days from then to submit an optional response.

The motion, filed with Davila on Monday, says the appeal “is not for the purpose of delay” but “raises significant issues of law or fact which, if successful, would dictate a new trial.” The brief identified several issues, including Davila agreeing to what her attorneys described as “testimony disguised as fact,” allowing certain reports and other evidence, and excluding testimony from Holmes’ ex-boyfriend and business associate Ramesh “Sunny” Balwani, her co-defendant awaiting sentencing. They also plan to argue that Davila made a mistake in turning down Holmes’ requests for a new trial, including her request for a surprise visit to her home by a key witness Adam Rosendorffformer laboratory head of Theranos.

“If Ms. Holmes prevails on appeal, a new trial will no doubt be required,” the motion reads.

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

“This case has a long, complex record that requires the resolution of numerous material issues on appeal that, if decided in its favor, would require a new trial,” the motion reads. “MS. Holmes has remained in constant contact with counsel in this case. The release will facilitate Ms. Holmes’ continued communication with her counsel regarding these issues and the merits of her appeal.”

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

Read the full application here.

[Image via Kimberly White/Getty Images]

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