Federal prosecutors used “incomplete and provably inaccurate statements” when they “recklessly and incorrectly” accused Theranos founder Elizabeth Holmes last week of trying to flee the U.S. after her fraud conviction, her legal team said in a court filing Monday.
The prosecution last week made the bombshell allegation that Holmes had a one-way plane ticket to Mexico, to leave in late January 2022 following her conviction at the start of that month, and only canceled after a prosecutor contacted her lawyers about it. Holmes’ partner Billy Evans, prosecutors claimed, flew 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 felony 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.
Holmes had “no way” to take a trip to Mexico after 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 11-year sentence. Prosecutors’ claim that she tried to flee the country came in their response to her motion to stay out of prison until her appeal is done, which legal experts say could take a year or more.
The prosecution’s claim that Evans — who described himself for the first time as Holmes’ “fiancé” in a declaration included with the filing — was out of the country for weeks after leaving for Mexico in late January 2022 is “simply untrue,” Holmes’ lawyers argued. Evans, a hotel heir, returned to the U.S. through Tijuana four days after he flew to Mexico, according to the filing, which included a credit card receipt in his name for the toll bridge from Tijuana to the U.S. Also included with the filing was a purported Feb. 2, 2022 photo of Evans on the floor of his home with Holmes, smiling at the young son they share, as Holmes’ late dog Balto looks on.
Holmes’ legal team also included an exhibit with their filing 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.
Prosecutors’ allegation that Holmes tried to leave the U.S. was covered by news media across the country. “This created a firestorm and I think the defense needed to correct the record,” said former Santa Clara County prosecutor Steven Clark. “They basically called the prosecution’s allegation a cheap shot.”
Holmes, 38, was sentenced in November and has remained free on bail throughout the court process. 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 before she is incarcerated.
Her lawyers want Davila to remove from the court record the allegedly inaccurate statements by prosecutors.
In their filing, Holmes’ lawyers questioned why government prosecutors last week accused her of having tried to flee the country when they had not claimed that earlier when 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.”
Also included with the Holmes filing are emails between her legal team and prosecutors exchanged after the government learned about her ticket to Mexico and told 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.”
The prosecution did not immediately respond to questions Monday about their claim Holmes sought to flee the U.S.
Former prosecutor Clark said the filing by Holmes’ legal team fails to address a key issue identified by prosecutors: that Holmes’ ticket to Mexico was allegedly one way. “That has not been adequately explained to the government’s satisfaction,” Clark said. “They’re very concerned about where Ms. Holmes may have been going. She booked a ticket knowing she was potentially facing a 20-year sentence — and not a round-trip ticket.”