Federal prosecutors “recklessly and inaccurately” accused Theranos founder Elizabeth Holmes of trying to flee the U.S. after her felony-fraud conviction, using “incomplete and provably inaccurate statements of fact in support of that accusation,” her legal team said in a court filing Monday.
The prosecution last week alleged that Holmes had booked a one-way trip to Mexico, to leave in late January 2022 following her conviction at the start of the month, and only cancelled her flight after a prosecutor contacted her lawyers about it. Holmes’ partner Billy Evans, prosecutors claimed, had flown to Mexico, not returning for nearly six weeks, and then from South Africa.
In Monday’s filing, Holmes’ lawyers said she “has never attempted to flee” the U.S. “Before the jury had reached its verdict, Ms. Holmes hoped to be acquitted and thus to be able to attend the wedding of close friends in Mexico in late January 2022,” the filing said. “Mr. Evans booked flights for himself and Ms. Holmes—on commercial airlines based in the United States, using Ms. Holmes’ name — in December 2021, before the verdict. Once the verdict was issued, Ms. Holmes did not intend to make the trip.”
Holmes was convicted by a jury on four counts of defrauding investors in her now-defunct Palo Alto blood-testing startup. At the time of her conviction, she was facing years in prison.
Her lawyers argued in the filing that Evans — who described himself as Holmes’ “fiancé” in a declaration included with the filing — had not canceled Holmes’ ticket by the time the prosecution contacted her lawyers. But Holmes had “no way” to make such a trip in the wake of her conviction, her lawyers claimed. “Not only did Ms. Holmes’ conditions of release require Court approval for international travel, but the Court has her passport, which was (and still is) expired, and she did not attempt to get a new one,” the filing said.
Holmes is appealing her conviction and sentence. Prosecutors’ claim that she tried to flee the country came in response to her bid to stay out of prison until her appeal is done, which legal experts say could take a year or more.
Prosecutors’ claim that Evans was out of the country for weeks after leaving for Mexico in late January 2022 is “simply untrue,” Holmes’ lawyers said in the filing. Evans, a hotel heir, came back to the U.S. through Tijuana four days after he flew to Mexico, and was home soon after, the filing said. Holmes’ lawyers included as an exhibit with their filing a photo of Evans on the floor smiling at the young son he has with Holmes, with Holmes’ late dog Balto looking on. A purported screenshot of the photo’s metadata indicates it was shot Feb. 2, 2022.
Holmes’ legal team also included an exhibit with their filing purportedly showing a copy of a United Airlines itinerary for Evans’ trip to South Africa, indicating he flew from San Francisco to Capetown via Newark on Feb. 20, 2022 and returned to San Francisco on March 4, with all flights on United in economy class. Another exhibit shows a purported copy of a Delta itinerary indicating that in February before he went to Capetown, Evans had also traveled round-trip in the main cabin from San Francisco to Salt Lake City on a four-day trip.
Another exhibit shows a receipt for the toll bridge from Tijuana to the U.S. Evans, in his declaration included with the filing, said under penalty of perjury that the bridge receipt and flight itineraries were “true and correct.”
Holmes, 38, was sentenced in November to more than 11 years in prison. She has remained free on bail throughout the court process, and Judge Edward Davila in sentencing her allowed her to defer imprisonment until April 27, a decision legal experts believe was made to allow Holmes, pregnant, to give birth to her second child.
Her lawyers want Davila to remove from the court record the allegedly inaccurate statements by prosecutors in their court filing claiming Holmes attempted to flee.
In their filing, Holmes’ lawyers questioned why federal government prosecutors last week were accusing her of having tried to flee the country when they had not claimed that earlier when Judge Edward Davila was making decisions about whether she could remain free.
“The government’s newfound claim that Ms. Holmes attempted to flee is baseless,” the filing said. “If the government thought she had, the Court, Pretrial Services, and the Probation Office would have heard she was a flight risk during the three years prior to trial and the year since Ms. Holmes’ conviction. The Court has Ms. Holmes’ passport, which has been expired for years. She is in frequent contact with multiple pretrial services officers. She has a flawless pretrial services record.”
Also included with the filing by Holmes’ lawyers is correspondence between her legal team and prosecutors once the government learned about her ticket to Mexico and informed her lawyers. Holmes lawyer Lance Wade wrote to the prosecution that Evans had booked the Mexico trip in late December 2021, before the Jan. 3, 2022 jury verdict, to go to a wedding near Puerto Vallarta, but that “after the verdict, Ms. Holmes decided not to make the trip.”
Holmes’ lawyers included with the filing a response from prosecutor Jeff Schenk, thanking Wade and saying, “I suspected there was an explanation, and I look forward to receiving additional information tomorrow.” An email from Schenk to Wade the next day said, “Thank you again for the background information, confirmation, and for addressing this situation quickly. I do not believe there is need for us to discuss this further, but I will certainly be in touch if that changes.”