Elizabeth Holmes appeals conviction, 11-year sentence despite bleak outlook

Disgraced biotech founder Elizabeth Holmes has appealed her criminal fraud conviction and federal prison sentence—a move that was widely anticipated but is seen as unlikely to succeed.

Holmes was convicted in January on four counts of defrauding investors of her now-defunct blood-testing startup, Theranos, resulting in millions of dollars in loss. Holmes, along with her former romantic partner and Theranos COO, Ramesh “Sunny” Balwani, falsely claimed that their technology could perform more than 200 medical tests with just a few drops of blood. Balwani’s sentencing is scheduled for December 7.

Two weeks ago, Judge Edward Davila of the US District Court for the Northern District of California, who proceeded over the exhaustive trial, sentenced Holmes to 11 years and 3 months in federal prison.

Holmes’ three-page notice of appeal , filed December 2, did not indicate on what grounds she will appeal her case. She has until March 3 to file legal briefs for her appeal effort in the Ninth Circuit Court of Appeals in California.

Legal experts have said she has slim chance of overturning her conviction, citing Davila’s cautious efforts to be fair to both sides during the trial. Davila has previously denied Holmes’ post-trial acquittal bid and three separate motions for a new trial .

“This sentence is bullet-proof on appeal,” Seth Kretzer, a criminal defense lawyer not involved in the case, told Bloomberg News. “The end of this long case is drawing near.”

"Heaven"

Experts who spoke with Law360 also expressed doubt that Davila would allow Holmes to remain free on bail until her appeal is complete, which could take years. Currently, Holmes is scheduled to surrender to the US Bureau of Prisons by April 27, 2023.

Davila has proposed that Holmes serve her time in a minimum-security federal prison camp for women in Bryan, Texas, outside Houston, which mostly holds non-violent, white-collar young women convicted of embezzlement or fraud. The facility, which has dormitory housing and a low staff-to-inmate ratio, is seen as “heaven” compared with other places in the prison system, according to Alan Ellis, a criminal defense lawyer who spoke with The Washington Post.

There are “no walls, no bars, no fences,” Ellis said. “No one wants to get kicked out because compared to other places in the prison system, this place is heaven. If you have to go it's a good place to go.”

Judge Davila also encouraged family visitation for Holmes, saying it “enhances rehabilitation.” Holmes and her partner, Billy Evans, have a 16-month-old son. Holmes is also now visibly pregnant with her second child.

If her conviction withstands appeal, experts told Law360 that they expect Holmes, who is 38, will end up serving no less than nine and a half years behind bars—85 percent of her sentence—assuming she is a candidate for early release for good behavior.