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Sentencing Law and Policy
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Ninth Circuit affirms convictions and sentences of Elizabeth Holmes and her co-defendant

By Douglas Berman

As reported in this Bloomberg Law piece, “Elizabeth Holmes lost her last-ditch effort to overturn her 2022 fraud conviction when a federal appeals court on Monday upheld the judgment against the disgraced Theranos Inc founder.  A three-judge panel for the US Court of Appeals for the Ninth Circuit in San Francisco also upheld the conviction of her former business and romantic partner Ramesh ‘Sunny’ Balwani.”  The full Ninth Circuit panel opinion in US v. Holmes and Balwani, No. 22-10312 (9th Cir. Feb. 24, 2025) (available here), runs 54 pages with the final eight pages discussing a few sentencing issues.

Interestingly, the sentencing issue that gets the most attention in this opinion is the “district court’s restitution order requiring Defendants to pay $452 million to fourteen victims under the MVRA.”  This section of the panle opinion indicates that there was possible error in the district court’s restitution findings, but that “any error by the district court was harmless because the district court’s factual findings compel the conclusion that the victims’ actual losses were equal to the total amount of their investments.”  While others might find the substance of the discussion notable, the reference to the the district court’s factual findings” gets me to keep thinking about Justice Gorsuch’s short opinion this morning (discussed here) questioning the constitutionality of a judge “order[ing] restitution in a criminal case based on his own factual findings, without the aid of a jury.”

I suspect that neither of the Theranos defendants have preserved the issue of whether their restitution orders, based only on judicial fact-finding, violated their Sixth Amendment rights.  But the Ninth Circuit panel opinion suggests that, even if a district judge gets something wrong when deciding on criminal restitution amounts, the judgment will still be upheld if the judge’s findings were “close enought for government work.”

A few of many prior related posts: