U.S. District Judge Edward Davila's decision - and Holmes' reporting date for a potential stint in prison -- could be affected by the former entrepreneur's second pregnancy in two years.
"She will be no more of a flight risk after she is sentenced that she was while awaiting sentencing," Levin said. "We have to temper our sentences with some measure of humanity." The pregnancy makes it more likely Davila will be criticized no matter what sentence he imposes, predicted Amanda Kramer, another former federal prosecutor.
"There is a pretty healthy debate about what kind of sentence is needed to effect general deterrence to send a message to others who are thinking of crossing that line from sharp salesmanship into material misrepresentation," Kramer said.Federal prosecutor Robert Leach emphatically declared Holmes deserves a severe punishment for engineering a scam that he described as one of the most egregious white-collar crimes ever committed in Silicon Valley. In a scathing 46-page memo, Leach told the judge he has an opportunity to send a message that curbs the hubris and hyperbole unleashed by the tech boom of the past decade. Holmes "preyed on hopes of her investors that a young, dynamic entrepreneur had changed healthcare," Leach wrote. "And through her deceit, she attained spectacular fame, adoration, and billions of dollars of wealth." Even though Holmes was acquitted by a jury on four counts of fraud and conspiracy tied to patients who took Theranos blood tests, Leach also asked Davila to factor in the health threats posed by Holmes' conduct. Holmes' lawyer Kevin Downey painted her as a selfless visionary who spent 14 years of her life trying to revolutionize health care with a technology that was supposed to be able to scan for hundreds of diseases and other aliments with just a few drops of blood.'Can't fraud it until you make it': Bay Area experts weigh in on Elizabeth Holmes conviction Although evidence submitted during her trial showed the tests produced wildly unreliable results that could have steered patients in the wrong direction, her lawyers asserted Holmes never stopped trying to perfect the technology until Theranos collapsed in 2018. They also pointed out that Holmes never sold any of her Theranos shares - a stake valued at $4.5 billion in 2014 when Holmes was being hailed as the next Steve Jobs on the covers of business magazines. Defending herself against criminal charges has left Holmes with "substantial debt from which she is unlikely to recover," Downey wrote, suggesting that she is unlikely ever to pay any restitution that Davila might order as part of her sentence.Downey also asked Davila to consider the alleged sexual and emotional abuse Holmes suffered while she was romantically with Ramesh "Sunny" Balwani, who became a Theranos investor, top executive and eventually an accomplice in her crimes. Balwani, 57, is scheduled to be sentenced Dec. 7 after being convicted in a July trial on 12 counts of fraud and conspiracy.
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