For The Sake Of A Complete Record, Only… Her Reply, Tonight

Here are all the same arguments, made once again — but this time, tonight — in a formal reply to the able AUSAs’ brief — hers, about why she thinks she should not start serving her sentence on April 27, 2023. In fact, she argues she shouldn’t — until all appeals have been exhausted.

Never mind that… even in white collar cases, it mostly hasn’t worked that way… in nearly 20 years.

Especially so, where more than $100 million has been fleeced — over several years, and during several increasingly far-fetched and complicated lies, in the capital raising processes.

And never where the frauds at least arguably endangered human patient lives.

And yes, those are… her facts, as found. [She has also now delivered her second baby, as page 2 indicates “…including her toddler and infant….” Now you know.]

Now you know.

G’night — grinning.

Completely Separate From Her Surrender Date, Ms. Holmes’ Opening Brief In The Ninth Circuit Is Due April 3, 2023.

Perhaps already essentially accepting that she is going to have to start her sentence, at Camp Bryan, in Texas… before the overall appeal of her conviction really gets rolling, she had moved in January for (and has been granted) a delay as to when her first brief is due — and that pushes back the correlative response date — for the government, by pure math.

And she should hear shortly that her surrender date is… her surrender date.

Here’s that bit, on the Ninth Circuit appeal, overall — just to keep a complete record:

…Elizabeth A. Holmes [motion] to extend time to file the brief is approved.

Amended briefing schedule:

Appellant briefs and excerpts due by 04/03/2023 for Elizabeth A. Holmes….

Appellee brief due 05/03/2023 for United States of America.

The optional reply brief is due 21 days from the date of service of the answering brief.

[12632332] (DLM) [Entered: 01/18/2023 08:08 AM]….

Now you know. But she should have already delivered her second child — if the guesses by reporters were accurate, as to how far along she was, at her sentencing hearing.

But the hot sheets have no report (yet) on that.

Out, smiling….

So… More Granularity, On Amounts Of Restitution Sought, In Holmes’ (And Balwani’s) Felony Post-Verdict Proceedings…

Just some clean up — before each felon’s restitution hearings.

The AUSAs have added to their arguments for a high restitution payment by each of the felons, just in case USDC Judge Davila is thinking of going soft on Ms. Holmes (though highly unlikely), since all her income would now come from her partner. That would be… irrelevant.

Here’s the latest, as filed last night in San Jose:

…The Court has scheduled a restitution hearing in this matter for March 17, 2023, at 10 a.m. ECF No. 1709. On January 30, 2023, the government filed a Supplemental Brief Regarding Restitution in the Balwani matter. ECF No. 1726. The arguments in that brief apply equally to Defendant Elizabeth Holmes. The government incorporates them by reference and respectfully requests that the Court order restitution against Defendant Holmes as set forth in ECF No. 1726 and the government’s prior sentencing memoranda….

DATED: February 3, 2023….

…The purpose of restitution is to put the victim back in the position he or she would have been but for the defendant’s criminal conduct.” Id. at 581 (emphasis in original). “‘The primary and overarching goal of the [Mandatory Victims Restitution Act, 18 U.S.C. § 3663A] is to make victims of crime whole.’” Id. at 580 (quoting United States v. Gordon, 393 F.3d 1044, 1048 (9th Cir. 2004), abrogated on other grounds, Lagos v. United States, 138 S. Ct. 1684 (2018)). Indeed, “the ordinary meaning of restitution is restoring someone to a position he occupied before a particular event.” United States v. Kaplan, 839 F.3d 795, 800-01 (9th Cir. 2016) (internal quotation omitted) (noting “the purpose of the MVRA is… to restore victims to their original state prior to the criminal act”); United States v. Brock-Davis, 504 F.3d 991, 998 (9th Cir. 2007) (emphasizing that the purpose of restitution is to restore the defrauded party to the position he would have had absent the fraud).

The MVRA, as its name suggests, is mandatory: “Notwithstanding any other provision of law… the court shall order… that the defendant make restitution to the victim of the offense….” 18 U.S.C. § 3663A(a)(1). The statute defines victim as “a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.” 18 U.S.C. § 3663A(a)(2). The MVRA applies in all sentencing proceedings for convictions of any offense that is “an offense against property under this title… including any offense committed by fraud or deceit,” as well as “any offense . . . in which an identifiable victim or victims has suffered a… pecuniary loss….”

It is a near certainty that the Holmes figure here will be ordered to be well over $100 million, and perhaps in the range of $450 million.

Now you know.