Former Theranos executive Ramesh ‘Sunny’ Balwani was recently sentenced to 13 years in prison after being convicted on 12 counts of wire fraud and conspiracy. Balwani appealed his conviction, and he’s asked the district court to release him from prison while his appeal is pending.
Elizabeth Holmes, the founder and CEO of Theranos, has been all over every form of media in recent years. The story of Theranos peddling snake-oil blood-testing technology and defrauding the world has been the subject of books, podcasts, documentaries, and scripted television shows. After defrauding investors and patients to the tune of nearly a billion dollars, Holmes was charged, convicted, and sentenced to 11 years in prison.
The Clyde to Holmes’ Bonnie is Sunny Balwani. The former COO of Theranos and former romantic partner of its founder was allegedly involved in the scheme all along. For his part in the Theranos debacle, Balwani was found guilty on ten counts of wire fraud and two counts of conspiracy to commit wire fraud. Balwani was ultimately sentenced to 12 years and 11 months in prison, plus three years of supervised release.
Balwani’s sentence was even longer than the 11-year, three-month sentence dealt to Holmes in November. Balwani was convicted on all 12 counts charged, while Holmes was only convicted on four.
Balwani has appealed his conviction and sentence. He has also filed a motion for release pending appeal. In his view, he should be allowed to roam free until the validity of his conviction and sentence are finally decided.
Balwani’s request is not as far-fetched as it may appear. A number of states allow defendants to be released on bail pending appeal, so long as they otherwise satisfy the conditions of release. Federal law permits bail pending appeal for certain convictions if the defendant persuades the court by “clear and convincing evidence” that they do not pose a flight risk, their appeal has a reasonable chance of success, and they will not harm anyone in the meantime.
To be released while awaiting his appeal, Balwani will need to convince the court of those three elements. Release pending appeal is not impossible, but it’s certainly difficult. Non-violent offenders like Balwani have little trouble arguing that they pose no physical danger to any individual person or the community. It will be a challenge, however, to prove that he’s not a flight risk. People with vast resources and international connections have ample opportunity to flee the country and evade capture. Courts are especially wary of releasing defendants who face a lengthy sentence; if you are looking at more than a decade behind bars, fleeing starts to seem a whole lot more appetizing. Texas law, for example, flat-out prohibits release pending appeal if the defendant has been sentenced to at least ten years.
Balwani will also need to show he’s likely to succeed on his appeal. He reportedly intends to argue, among other things, that the court erred in its rulings and decisions that were adverse to his case, and that the prosecution’s evidence on several counts was too indirect and attenuated to support a conviction. Appellate courts defer heavily to juries, so proving that a verdict was unsupported by the evidence as a matter of law is especially difficult.
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