A Minor Appeal Point, But It Vexes Me… Holmes’ Brief Misleads, On Factual Context.

It is a relatively minor matter, and soon enough, the government will make it plain for the Ninth Circuit panel, in briefs, or at oral argument.

But I just have to speak it out aloud/type it out — here and now.

I will openly acknowledge that Dr. Rosendorff was not the perfect prosecution witness, in the Theranos trial. [The Theranos lab was in fact a mess.] And he at least in title was in charge of the lab at Theranos, during various times — but the problems there are not in dispute — and he reported to Holmes and Balwani.

So it is a little rich now, only after being convicted, that Ms. Holmes wants to argue that the jury got it “wrong”, because they didn’t know the full extent of some problems at other companies’ labs connected to this same witness, prior in time.

Actually that fact was before the jury. And the jury convicted her anyway.

Why? Well, because… at the other labs… NO ONE LIED to the investors, the government, the press and the public about what was actually happening.

So the whole argument from page 55 to 64 of her opening brief is so lacking in candor, about Perkin-Elmer, Invitae and uBiome, as to be… misleading.

It was Ms. Holmes (and Mr. Balwani) that repeatedly lied — and lied in writing to investors — about what was happening in the lab — in the areas Dr. Rosendorff was nominally supervising (i.e., the machines were, in fact, not remotely close to actually working in any meaningful way). There is no evidence in any of the 400 volumes of trial transcripts that suggests Dr. Rosendorff ever spoke directly to a single investor — or was deceptive to any government official or member of the press — ever (at any company). I got all this from the government’s response, tonight to ongoing, and largely specious sealing requests from Team Holmes in the Ninth Circuit.

That was all Holmes (and Balwani). And thus this brief intentionally defames the business reputations of Perkin-Elmer, Invitae and uBiome to suggest here, in 2023 — that they were in any way as deceptive as Holmes and Balwani were.

Damn.

But now you know. Out — we now wait for a date for the stay motion to be decided, in the Ninth.

[U: Stay Sought; Two To Three Week Delay Now.] Overnight, Ms. Holmes Renewed Her Bail Request, In The Ninth Circuit…

Updated, as of Noon Eastern: Her trial counsel has placed the papers with the able USDC Judge Davila, in San Jose, to delay her report date — but just until the Ninth Circuit rules on her just filed stay request — exactly the same as Mr. Balwani.

Expect the same outcome. Here, the MSM hot take is badly mis-informed; this is not a stay for the whole of the time her appeal is pending. This is the same as the Balwani cha-cha we saw a month ago. It will end the same way.

She will be inside in about three weeks, tops. End update. [Rewrote the rest for this later development.]

But interestingly, as of 7 AM PDT this morning, she STILL hasn’t She just now tried the Balwani (failed) gambit of seeking a stay on her report date, in the Ninth Circuit. [Here is her (just filed around one am this morning, Eastern) more routine 31 page bail appeal.]

She may still file for a stay, even after 9 PM PDT tonight (she did, as of noon Eastern on 04.25.2023). but that would be after midnight in NYC… and she would be due to report, at the gates of Texas Camp Bryan within about twelve hours of that time. [That’s likely not enough time for the Ninth Circuit panel to be able grant a hearing, even if it is inclined to hear her stay request, before she would have violated the order to report, by remaining away form Camp Bryan to be booked in, for over a decade.]

So, effectively, unless she puts her stay motion in — in the next few hours (as she just did) — it is likely that she has decided NOT to try to game the system for what would amount to about a two week delay.

We will (of course) let you know — if it appears.

It now has. Onward.

Onward.

Completely Trivial: I Just Learned The Second Baby’s Birth Name, And Birth Date… Hmm.

Apparently, Elizabeth named her daughter (born February 9 of this year)… Invicta.

Her son, born July 10, 2021… is named Will. That I already knew.

But the names both are obviously intended to convey power and invincibility. That is the most common translation of the Latin, for “Invicta” — undefeated.

Sadly, though — all it calls to mind, for me… are the very cheap version of wrist-watches, as at right (styled to look like a Korean / Faux Rolex, from the 1990s). That is the association most of us in the US will have, at least those of us that were alive in 1990s.

Odd. Oh. Well. Two more days. She very much needs to be in Texas by tomorrow afternoon, to be certain to arrive at the gates by 2 pm local on Thursday.

Crim. Defense Lawyers Submit Amici Brief — But Ignore One Over-Riding Fact…

I appreciate that the amici who’ve just filed in the Ninth Circuit this afternoon… are esteemed criminal defense counsel one and all, and that they are all writing in the utmost good faith.

And I know they mean to help the Ninth Circuit panel here… in getting to a just result, as they see it.

And they are admirably waging a multi-pronged battle — in many other cases, now on appeal from convictions like Ms. Holmes’ — all about not becoming too “glamoured” by late breaking purported expert scientific testimony, in felony cases, especially.

All well and good, insofar as it goes.

But in the Holmes’ and Balwani convictions… these capable amici missed one very relevant fact.

And that fact makes all the difference — about late breaking expert testimony.

True, the government must disclose and make available for examination in advance (by defense directed dpositions) any scientific expert it intends to rely upon for a material part of its prosecution.

But in this case, it was plainly proved that some combination of Holmes and/or Balwani… ensured that a critical FDA required database would become “unavailable” to ALL outside experts.

They did so by causing the destruction of all the key pairs that would unlock the database.

Then the pair tried to blame the government for not providing the FDA required database BACK to the company and the indictees, for use as Brady material. They sought to have their experts argue that the database would have cleared them of intentional wrongdoing.

This — of course — did not fly, in front of the able USDC Judge Davila in San Jose… in either trial.

He rightly ruled that it would be the FDA/HHS and the AUSAs, ultimately who would be allowed to argue that any adverse inferences about the database content… would be allowed only against Ms. Holmes in her case, since she effectively caused the destruction of the data, by making it unavailable. Same with Mr. Balwani.

So — it would be manifestly unfair to the people of the United States / our government NOT to have an expert (for the prosecution –even late-breaking, as this was) explain how and why the database was mostly likely “missing” solely to benefit Ms. Holmes. And thus that if anyone had improper motive in procuring its unavailability… it was the pair of Balwani and Holmes. [It likely contained many a smoking gun of deception, or worse — affirmative patient harm.]

So — in sum, while I respect the amici brief’s argument — one should not benefit in a felony trial from ones’ own misconduct — destroying evidence. So the entire brief is inapplicable in the Holmes case.

Sunny Balwani Has Officially Been Assigned His Prisoner Number, At The Federal Bureau of Prisons Database…

He is also now in the gen pop section of FCI Terminal Island, having cleared all medical protocols.

So… this is the limit of his world for perhaps the next 13 or so years (with a little less, for good time, maybe).

Come six days from now, it will be Ms. Holmes’ turn in the barrel — out in the dusty, rural dryly-forsaken plains of Texas — same exact drill — for a decade or more.

Now you know. Out.

Ms. Holmes Just Filed A 132 Page Opening “Brief”(!), To Appeal Her Convictions In Cal.’s Ninth Cir.

She largely seeks to hang her hat on a notion that Sunny Balwani admitted to some of the same misrepresentations that caused investors’ losses.

But she and Sunny chose to be tried separately (they thought, to avoid tainting one another in a joint trial). Had they gone to trial together, the same jury would have heard the evidence she now complains about being excluded. [It wouldn’t have changed the outcome, though — as there was a sh!t-ton of other evidence of Holmes’ own misrepresentations.]

So, that’s not gonna’ fly, in the Ninth Circuit.

But with her report date at FCI Camp Bryan in rural Texas now only nine days away, she still hasn’t tried the delay gambit that Mr. Balwani used to stall his report date by almost a month, in the harbor thirty miles away from LA. So she may have decided to just go ahead and get started serving her time, since the Ninth Circuit is almost certain to deny any request for a stay of her report date — just as it did in Sunny’s case.

We shall see. But here is the very oversized brief (a full 132 pages, where the rules allow only 40) — and a bit. I don’t buy it — but I will print it, in fairness:

…The court abused its discretion by excluding prior testimony from Holmes’ co-defendant, Balwani, that he, not Holmes, was responsible for the model that generated the allegedly false financial projections given to C-2 investors. The court erred in holding that Balwani’s statements were insufficiently inculpatory or trustworthy under Rule 804(b)(3). Balwani made the statements when the SEC and the grand jury were investigating the financial projections. And his statements were corroborated by the trial record. The error prejudiced Holmes’ defense to this important allegation….

…Finally, the court erred at sentencing by finding the facts supporting its drastic, combined 26-level enhancement by a preponderance of the evidence. The Due Process Clause required the court to apply the clear-and-convincing standard. The court reasoned that the heightened standard did not apply because the enhancements were based on the extent of the conspiracy count of conviction….

So — now we wait to see if Elizabeth files a literally last minute application for stay — or if she just shows up in Texas next week, about an hour outside of Austin to the east.

Onward.

Her Surrender Date Now Hinges On When She Files Her Ninth Cir. “Stay” Papers…

She only has ten days from last night to ask the Ninth Circuit to stay her surrender date. And after that, the April 27 date would be the rule.

But now that her overall request to remain free during appeals has been denied by the able USDC Judge Davila in San Jose, she is highly likely to make the same short term delaying move Mr. Balwani made, and see a couple extra weeks of time out, before she reports in rural Texas.

I will update this when her emergency stay request is filed in the Ninth Circuit, but barring some unforeseen lightning strike — she should be locked up by mid-May now.

Onward.

9th Cir. Denial; Sunny Balwani Will Report To Prison On Or Before April 20, 2023.

Well — this is exactly, to the letter — how Ms. Holmes’ appeal will go down, as well. The Ninth Circuit order reads “…Mr. Balwani’s] motion for bail pending appeal (Docket Entry No. [8]) is denied. Appellant has not shown that: (1) the appeal raises a “substantial question” of law or fact that is “fairly debatable,” and (2) if that question is decided in appellant’s favor, the likely outcome is reversal, an order for a new trial on all counts resulting in imprisonment, a sentence that includes no term of imprisonment, or a sentence with a term of imprisonment less than time served plus the expected duration of the appeal process. See 18 U.S.C. § 3143(b)(1)(B); United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985)…. [12690846] (WL) [Entered: 04/06/2023 04:45 PM]….”

All just as we’ve said (and equally applicable to Ms. Holmes):

…The Ninth Circuit denied Mr. Balwani’s motion three days later on April 6, 2023. Balwani, No. 22-10338 (Apr. 6, 2023), ECF No. 13.

Given that Mr. Balwani’s March 16 reporting date has now passed, Mr. Balwani seeks an order from this Court setting a new reporting date. Mr. Balwani is making preparations to travel to Los Angeles in order to report to the Bureau of Prisons at FCI Terminal Island. This includes making air travel arrangements and ensuring his family has access to his critical documents and information. He is also actively working on his merits appeal, for which his opening brief to the Ninth Circuit is due on April 20, 2023. In order for Mr. Balwani to get all of these affairs in order, he respectfully requests that the Court set a new reporting date two weeks from today, April 20, 2023.

See United States v. Patel, No. 3:17-cr-00114 (D. Nev. Sept. 18, 2019), ECF No. 65 (setting two-week self-surrender date following Ninth Circuit denial order). The government has not expressed a position on this request….

So… buckle up, Elizabeth — you’re next.

We may even see your order, Ms. Holmes (finalizing your report date) from USDC Judge Davila tonight, dumped into the relatively dead news space of a Good Friday night. He did say it would be in April. And your date is now three weeks off.

Yep. Karma is… a wheel.