Theranos founder Elizabeth Holmes will not have to report to prison this week after filing an appeal with the Ninth Circuit Court of Appeals in San Francisco.
Holmes, who was convicted of four counts of fraud in January 2022 and sentenced to 11 years and three months in prison by U.S. District Judge Edward Davila in January, had filed a motion earlier this month to remain out of prison pending appeal. But Judge Davila denied that motion and ordered Holmes to begin serving her sentence on Thursday.
However, with her new appeal filed Tuesday night, Holmes is challenging Judge Davila's ruling asserting she should be able to remain free pending appeal because she says the appeal is "likely to result in a reversal." Now, due to a rule within the Ninth Circuit Court of Appeals, Holmes will remain free on bail until the court makes a decision.
In the appeal, Holmes' attorneys state that her conviction was the result of "prejudicial errors that warrant reversal and a new trial." They argue that Judge Davila's denial of her release pending appeal "reflects numerous, inexplicable errors" including the court's referral to Holmes' "patient fraud convictions," of which Holmes was actually acquitted. They also argue that the court "used the wrong legal standard to assess whether key issues presented were likely to result in reversal."
The government has 10 days to respond to the motion.
This appeal comes after an amicus brief that was filed earlier this week by the National Association of Criminal Defense Lawyers, a nonprofit bar association that works on behalf of criminal defense attorneys to ensure justice and due process for accused criminals. In their brief, filed with the Ninth Circuit Court of Appeals in support of Holmes, they argue that the court should "reverse the decision and have a new trial" due to what they say is a violation of The Federal Rules of Criminal Procedure and Evidence by the government.
Their brief echos the arguments from Holmes' appeal of her conviction, filed last week, challenging multiple rulings including allowing a former Theranos lab director to testify as an expert witness. Holmes' attorneys also argued that the prosecution's case "largely parroted the public narrative" and that the prosecution "lacked the data necessary to present a comprehensive, scientifically reliable expert analysis of Theranos' technology."
The government has until May 3 to respond to Holmes' appeal of the conviction.
Meanwhile, Holmes' former boyfriend and Theranos COO, Ramesh "Sunny" Balwani reported to prison on April 20 after being denied his motion for release pending appeal by the Ninth Circuit Court of Appeals, within three weeks. Balwani was originally ordered to report on March 16 but that was delayed due to the automatic stay from the Ninth Circuit. Balwani is set to serve 13 years at Terminal Island prison, a minimum-security facility in San Pedro, California.
Balwani was convicted in July 2022.
"This is a sad day for Mr. Balwani and for the cause of justice…A nearly 13-year sentence is truly draconian for a man whose sole focus was helping to create a great company without ever putting himself first. We will continue to fight for Mr. Balwani, and are optimistic that the Court of Appeals will correct this injustice when it hears the case," Jeff Coopersmith, Balwani's attorney, told ABC News in a statement when he reported to prison.
It is historically rare for an appeals court to allow a defendant to remain free pending their appeal because the likelihood of granting a new trial is rare, according to criminal defense attorney Caroline Polisi.
"The standard is that the government was lacking evidence to such a degree that it is likely that an appeals court would overturn the conviction, that just doesn't happen very frequently," Polisi told ABC News, adding, "Appeals courts are loath to second guess jury decisions."
If Holmes' appeal of Davila's denial of her release pending appeal is rejected then she will likely report to the Federal Prison Camp at Bryan, Texas, which is a minimum security prison about 100 miles from where Holmes grew up.