Photo credit: Ethan Pines, The Forbes Collection
By Ethan Baron, East Bay Times
Theranos founder Elizabeth Holmes tried to flee the U.S. after a jury convicted her of felony fraud in early 2022, federal prosecutors alleged in a new court filing.
“Holmes booked an international flight to Mexico departing on January 26, 2022, without a scheduled return trip,” the document from prosecutors, filed Thursday, said. It was only after government prosecutors contacted Holmes’ legal team about the “unauthorized flight” that the trip was cancelled.
“The government anticipates (Holmes) will note in reply that she did not in fact leave the country as scheduled — but it is difficult to know with certainty what (she) would have done had the government not intervened,” the filing said.
Holmes’ partner, hotel heir Billy Evans, left the county on that day in January with a one-way ticket and didn’t return for six weeks.
Holmes, 38, was convicted after a four-month trial on four counts of fraud for bilking investors in her now-defunct blood-testing startup out of more than $144 million. In November, Judge Edward Davila in U.S. District Court sentenced a pregnant Holmes to more than 11 years in prison, deferring her incarceration until April 27.
Lawyers for Holmes did not immediately respond to prosecutors’ claims.
In a letter from her attorney Lance Wade to prosecutors, Wade said Holmes’ flight reservation was made before the jury’s verdict. “The hope was that the verdict would be different and Ms. Holmes would be able to make this trip to attend the wedding of close friends in Mexico,” the Jan. 23, 2022 letter said. “Given the verdict, she does not plan to take the trip — and therefore did not provide notice, seek permission, or request access to her passport (which the government has) for the trip. But she also had not yet cancelled the trip, amidst everything that has been going on. We will have her do so promptly.”
The prosecution’s allegation that Holmes sought to flee the U.S. came in response to her December motion seeking to delay her imprisonment until the appeals process is finished, which legal experts said could take a year or more. In her motion, Holmes claimed she was not a flight risk.
“The Court has already found that Ms. Holmes is not a flight risk … when it permitted her to remain in the community both before and after conviction,” the motion said. “Ms. Holmes surrendered her passport and is unable to travel internationally. She has been under supervision for over four years.”
The motion added that Holmes did not flee during her court case or “in the immediate aftermath of her conviction or sentencing,” and argued that “no evidence suggests she will flee” while appealing her conviction.
“She has strong ties to her partner and family, including her son and soon-to-be-born child, that incentivize her to comply with her conditions of release,” the motion said.
Prosecutors in their filing countered that Holmes claims do “not account for her attempt to flee the country shortly after she was convicted,” arguing that “the incentive to flee has never been higher and (she) has the means to act on that incentive.” They added that Holmes has asked Davila to ease her restrictions so she can travel outside northern California and possibly out of the state “due to her significant other’s employment.”
The prosecution sought in their filing to use Holmes’ life and lifestyle against her. “While facing these serious felony charges at trial and awaiting the Court’s sentence, (Holmes) has lived on an estate with reportedly more than $13,000 in monthly expenses for upkeep and has conceived two children with her current partner,” the filing said. “There are not two systems of justice — one for the wealthy and one for the poor — there is one criminal justice system in this country. And under that system, the time has come for Elizabeth Holmes to answer for her crimes committed nearly a decade ago.”
Former Santa Clara County prosecutor Steven Clark said he was surprised the government had not earlier raised the issue of Holmes’ purported attempt at flight. “I can tell that the patience is wearing thin on behalf of the government and there’s a certain frustration,” Clark said, after reading the filing. “They’re concerned that she’s spending time in a mansion and not in custody. They’re really questioning the fairness of all of this and I think their frustration was manifest.”
The bail conditions Holmes was under at the time of her alleged flight attempt are sealed by the court, but would certainly have prohibited travel outside the country without permission from a court officer or judge, Clark said. “I found it very disturbing that she would do something like that without clearing it with her pre-trial release officer,” he said.
Any judge deciding whether to let someone remain free on bail while they appeal would have concerns about a one-way ticket to Mexico, Clark said.
“It’s not like going to the next county or to a wedding in Nevada,” Clark said. “You’re talking about a major potential of not returning. Certainly she has access to resources to live sort of under the radar … or in another jurisdiction that may not honor our extradition.”
Prosecutors’ filing also accused Holmes of posing a danger to the public, saying, her “elaborate fraud scheme” and “lack of remorse and indicated willingness to continue operating in similar fields in the future” mean she can’t provide “clear and convincing evidence that she does not present a danger to the community.”
Holmes argued in December that she is not a threat to the public, and noted that prosecutors never asked that she be imprisoned immediately, either before or after her conviction.