The government’s lawyers defending their complete win (on felony convictions, on appeal in the Ninth Circuit) have now answered Mr. Balwani’s attempt to stay out of a federal low security prison facility, while his appeals are considered.
Almost word for word, this answer will track what the government ultimately argues, when Ms. Holmes files her paperwork in the same court, and tries the same delay / deflection tactic.
So we will quote it here, at length, as (to a near certainty) the outcome will be both go into BoP, to serve their time — after these expedited motions (but delaying as to FCI report date) are denied, in the Ninth Circuit.
…Defendant-Appellant Ramesh “Sunny” Balwani and his co-defendant, Elizabeth Holmes, stand convicted following separate jury trials for their multiyear scheme to defraud investors and patients into believing that their company, Theranos, had a revolutionary market-ready product that had been endorsed and adopted at high levels—when in fact that was not true. Balwani was sentenced to 155 months of imprisonment. Balwani now seeks to delay serving that sentence, urging that the district court that oversaw these months-long trials and examined each of Balwani’s potential claims in detail erred in concluding that he failed to overcome the statutory presumption that he should begin serving his sentence as scheduled. This Court should deny Balwani’s motion, as he falls well short of meeting the statutory requirements for relief in pressing three unpreserved or meritless claims as purported “substantial questions” for his appeal….
Detention is the mandatory, routine norm for any defendant following conviction and the imposition of a custodial sentence. 18 U.S.C. § 3143(b)(1). Congress enacted the Bail Reform Act of 1984 (“the Act”) to “toughen the law with respect to bail pending appeal” and to “make[ ] it considerably more difficult for a defendant to be released on bail pending appeal.” United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985)….
Under the Act, the burden shifts to the defendant to prove: (1) by clear and convincing evidence that he is not a flight risk or a danger to the community; and (2) that his appeal is not for the purpose of delay and (3) raises a substantial question of law or fact that is (4) likely to result in (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to less than time served. 18 U.S.C. § 3143(b)(1); accord United States v. Mett, 41 F.3d 1281, 1282 n.3 (9th Cir. 1994) (listing requirements).
“[T]he word ‘substantial’ defines the level of merit required in the question raised on appeal, while the phrase ‘likely to result in reversal’ defines the type of question that must be presented.” Handy, 761 F.2d at 1281. “For example, harmless errors, errors that have no prejudicial effect, or errors that have been insufficiently preserved would not justify a court’s granting bail.” United States v. Bilanzich, 771 F.2d 292, 299 (7th Cir. 1985). Put differently, “[a] court may find that reversal or a new trial is ‘likely’ only if it concludes that the question is so integral to the merits of the conviction on which defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial.” United States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985); see Handy, 761 F.2d at 1280–83 (adopting Miller) (noting question must be “likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed….”
[A] review of the evidence admitted at trial showing several other categories of false statements that Balwani and Holmes made to investors demonstrates any error related to these three witnesses is non-prejudicial at best. For example, at the same time Balwani was told by Walgreens executives that Walgreens would never expand their relationship with Theranos beyond a few dozen stores if the percentage of venous draws remained around 40%, in the fall of 2014, Balwani falsely represented to investors that it was reasonable to estimate that Theranos would be in 900 Walgreens locations by 2015. Ex. A at 4.
As another example, Balwani spoke directly with investor Mendenhall, who wrote detailed notes from their call and who testified that Balwani told him “that the science behind Theranos was complete; that no new invention was needed; and that Theranos was completely vertically integrated” — none of which was true. Id. at 8. Balwani also provided unattainable financial projections to investors, when he knew Theranos was barely generating any revenue, and shared falsified reports portrayed as if written by large pharmaceutical companies. Id. at 3–4. And he created “what was called the ‘null protocol’ to shield device failure from investors” during demonstrations of the proprietary analyzer’s purported capabilities….
Sorry, you two. It is now well-past time to start paying your debt to society — so… not sorry.
Holmes Felony Conviction And Incarceration 2023 