What’s next for Elizabeth Holmes?

By Sara Ashley O’Brien, CNN Business

As Elizabeth Holmes heard in real time that a jury of eight men and four women had found her guilty on four counts of defrauding investors, the former Theranos CEO remained stoic.

After the jurors were discharged, Holmes, wearing a mask and seemingly emotionless, went down the line of her supporters in the San Jose courtroom. She gave each a hug, beginning with her partner Billy Evans, then her mother, her father and friends, embracing each by placing an arm over their shoulder and clutching a pen in her hand.

With that, Holmes, 37, began the next chapter of her life as the rare Silicon Valley founder tried for, and convicted of, fraud. Once hailed as the next Steve Jobs for her ambitious promise of building technology that could test for a wide range of conditions with just a few drops of blood, Holmes now faces the possibility of years of prison time.

Here’s what’s next for Holmes and her high-profile court case, which went on for nearly four months.

Three remaining counts

The charges Holmes was found guilty of include one count of conspiracy to defraud investors, as well as three wire fraud counts tied to specific investors. But the jury also determined that Holmes was not guilty of three additional counts concerning defrauding patients and one count of conspiracy to defraud patients — a part of the government’s case that it spent relatively little time mounting in comparison to its case pertaining to investors.

The jurors did not return a verdict on three federal wire fraud counts tied to other investors — each of whom had invested in Theranos in its earliest days and then again later, with their later investments making up the counts in question.

The court indicated in a filing Tuesday that it had declared a mistrial for the three counts jurors couldn’t agree upon. Next, the prosecution will decide whether it intends to retry Holmes on those charges — something legal experts indicated they’ll almost surely drop at this point given the guilty verdict returned on four counts. Once that’s determined, the conversation will turn to Holmes’ sentencing.

Sentencing

According to the indictment, Holmes faces up to 20 years in prison for each count, which is likely to run concurrently. But that doesn’t mean she will get the maximum penalty, or anywhere near it. The judge will ultimately make the determination as he sees fit, referring to sentencing guidelines.

“The judge isn’t bound by the resulting sentencing range, but it is likely to frame the parties’ arguments at sentencing,” said Miriam Baer, a professor at Brooklyn Law School, who said a number of factors play into Holmes’ potential sentence which will be determined by Judge Edward Davila.

Shan Wu, a criminal defense lawyer and a former federal prosecutor, said he would expect any prison time to be on the lower end “primarily” due to Holmes’ “lack of criminal history.” But he said the dollar amount of the losses tied to the wire fraud charges are significant, and will factor in to the sentencing.

The possibility of an appeal

While the defense has not filed a notice of an appeal, legal experts say it is likely on the horizon, potentially impacting how soon Holmes serves her time if sentenced to prison.

According to George Demos, a former Securities and Exchange Commission prosecutor and adjunct law professor at the UC Davis School of Law, issues that the defense could raise as grounds for appeal may include “erroneous jury instructions or improper evidentiary rulings by the Court,” for example.

While an appeal could delay the outcome, Keri Axel, a trial lawyer at Waymaker and a former federal prosecutor, noted that “criminal convictions are rarely overturned, and the fact that the jury split the verdict will underscore how carefully it did its job.”

Free on bond

Holmes was not remanded after the verdict and remains free on bond.

In discussing post-verdict matters, prosecutor Jeffrey Schenk indicated the government would like to convert the condition of Holmes’ release to a secure bond. That means she would need to post something of value — “either in the form of property or cash, if that’s available,” Schenk said — such that should she not show up to court for future proceedings, it could be seized.

A target date of January 12 was set for handling the matter.

As she left the courthouse around 5:30 p.m. local time Monday, Holmes was bombarded with cameras and reporters. Holmes left as she entered most days, hand-in-hand with her mother and her partner Billy Evans, who also joined hands with Holmes’ father and a friend, forming a human chain.

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