Prosecutors have asked a judge not to allow convicted Theranos founder Elizabeth Holmes to stay out of prison throughout her upcoming appeal process, citing an instance ahead of her sentencing last year where she appeared to be preparing to flee the country.
Between now and then, however, Holmes’ legal team is plotting an appeal and, in the meantime, has asked that Holmes remain out of prison until that process is complete. In an early December filing, they wrote the disgraced founder is “not a flight risk or a danger to the community’s safety” and claimed that the appeal will “present several substantial questions” that could result in a complete do-over of the monthslong trial.
The prosecution begs to differ. In a filing of their own last week, federal prosecutors countered that Holmes has already proved herself to be a flight risk—describing how, last January and shortly after her conviction, the government learned that both Holmes and her partner, Billy Evans, had purchased one-way tickets to Mexico.
Though Holmes’ flight was canceled after the prosecutors brought it up to her defense team, Evans took the trip and returned six weeks later “from a different continent,” according to the filing.
“The government anticipates [Holmes] will note in reply that she did not in fact leave the country as scheduled—but it is difficult to know with certainty what [Holmes] would have done had the government not intervened,” the prosecutors wrote, reiterating their belief that Holmes may continue to pose a flight risk throughout the appeals process, “when her incentive to flee has never been higher.”
The prosecutors also took issue with the defense’s claim that Holmes would pose no danger to the community if she remains free on bail. They cited her “resourcefulness” in securing hundreds of millions of dollars in funding for Theranos from a range of sources—and, more recently, in landing the moral and financial backing of dozens of influential supporters throughout her trial—as well as her perceived lack of remorse and her stated plan to continue work on her existing patents.
“[Holmes] committed an elaborate fraud scheme that resulted in more than a hundred million dollars of loss, with no consideration of the patients she endangered and with no remorse to this day toward the investor-victims,” the prosecution wrote.
“Given the nature and magnitude of the crime, as well as her lack of remorse and indicated willingness to continue operating in similar fields in the future, [Holmes] cannot meet her burden of demonstrating by clear and convincing evidence that she does not present a danger to the community,” they continued.
Finally, later in the filing, the prosecutors rebutted not only Holmes’ claim that an appeal would result in a new trial but also the need for an appeal at all. Holmes’ team has pinpointed issues with certain testimony and witnesses from her trial, but the government said all rulings related to those points were issued correctly.
Even if those issues did come under appeal, the prosecutors continued, Holmes’ team hasn’t sufficiently proven that their successful appeal would overturn any part of her conviction, especially since “seven of the 10 issues [Holmes] has presented correspond almost entirely to the patient-related counts”—even though she was convicted only on investor-related counts of fraud.
The judge in Holmes’ case has scheduled a hearing on her motion to delay the prison sentence for March 17.