In a four-sentence order issued Thursday afternoon, the Ninth Circuit Court of Appeals unanimously denied a petition by former Theranos CEO Elizabeth Holmes seeking further hearings on her appeal.
Holmes was convicted of four counts of wire fraud against investors in January 2022. The evidence at trial showed that Holmes told investors that Theranos technology could run dozens of medical tests based on a single drop of blood, using a device known as the Edison machine.
In its first review of Holmes’ appeal, a three-judge panel found that the promise of Theranos’ technology was a “mirage” and described Holmes’s statements and those of her business partner and former lover Ramesh “Sunny” Balwani as “half-truths and outright lies.” That panel affirmed Holmes’ conviction earlier this year.
In her latest petition Holmes asked the court either to rehear her arguments as to why her conviction was improper or to order a full en banc hearing, meaning that 11 Ninth Circuit judges would decide her fate.
In asking for another shot at appellate review, Holmes returned to her ongoing argument that testimony by Theranos’ last lab director, Dr. Kenneth Das, that the Edison machines didn’t work, was improper “expert” testimony not permitted under the rules of evidence. Das ultimately ordered that all tests run on the machines be voided.
The appellate court rejected that argument back in February, concluding that, whether or not Das’ testimony was proper, other evidence as to Holmes’ representations was sufficient to uphold the verdict and so any error was harmless. In her most recent effort, Holmes argued that using this “harmless error” standard was improper.
Holmes also recycled her argument that the trial court improperly allowed evidence of a Centers for Medicare and Medicaid Services report that concluded, after Holmes’ fraud had been made public, that the Theranos tests presented an “immediate jeopardy” to patients. And she again challenged a trial court ruling limited her cross-examination of another Theranos lab director, Adam Rosenfeld, on his testimony that Theranos had more lab problems than anywhere else he had worked.
Having considered and rejected those arguments in Holmes’ original appeal, the same three-judge panel declined to do so again. The panel also denied Holmes’ request for a hearing in front of 11 judges: “The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on whether to rehear the matter en banc.”
Holmes’ last chance for relief now lies with a petition for writ of certiorari to the United States Supreme Court, a route that is rarely successful given the large number of writs sought and the required showing that the appellate court’s decision conflicts with those of other federal court of appeals or raises an important question of federal law.
Holmes is currently serving her time at the Federal Prison Camp Bryan in Texas. Her original sentence of 11-1/4 years has been reduced for good behavior, and she is currently scheduled for release in August 2032.
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