Elizabeth Holmes asked a judge to toss out her conviction, claiming no rational juror could have found her guilty of conspiracy and wire fraud beyond a reasonable doubt.
The request, filed late Friday in federal court in San Jose, California, is a routine and long-shot attempt to overturn a jury verdict.
“Sufficiency of the evidence challenges are raised in almost every appeal from a trial court disposition; maybe one such appeal a year is successful in a fraud case in any federal circuit court of appeals,” criminal defense attorney Seth Kretzer said.
The founder and former Chief Executive Officer of Theranos Inc. was convicted in January of four out of 11 counts of conspiracy and wire fraud and acquitted of four counts that she deceived patients. The jury was unable to reach a unanimous consensus on three other counts.
She was convicted of conspiring with former Theranos President Ramesh “Sunny” Balwani to commit fraud, but her lawyers argued prosecutors cited no evidence of such an agreement.
At trial, the government showed jurors numerous emails and texts to demonstrate coordination between the two. “Of the hundreds of text messages admitted at trial, the government cites only one that appears to relate to the content of representations to an investor,” lawyers for Holmes wrote in the filing, referring to a message about an investment by Rupert Murdoch.
But the text, described by a witness for context, “provides no inkling that Mr. Balwani and Ms. Holmes were conspiring to defraud Mr. Murdoch,” the lawyers wrote.
“Even if the judge were grant this motion, the government would still appeal to the Ninth Circuit” court of appeals, Kretzer said. “Prosecutors are heavily trained to present trials with abundant evidence so that even if some part were to fall apart on appeal, there is still enough to sustain at least one count of conviction.”
Holmes’s lawyers also attacked the wire fraud counts that she was convicted of, which were the backbone of the government’s case against her.
The basis for the charges was that Holmes lied about the capabilities and accuracy of Theranos blood analyzers. The investor fraud counts relied heavily on the testimony of whistleblower Erica Cheung, lawyers for Holmes argued. But Cheung testified about failures of Theranos results before Holmes promoted to investors a later version of its analyzers, the miniLab, they said.
“Investors, with whom Theranos partnered, were focused on the long-term goals of the company and its ability to impact health care in the future,” Holmes’s lawyers wrote.
US District Judge Edward Davila has scheduled a hearing in July to consider Holmes’s request. She’s scheduled to be sentenced in September.
Meanwhile, Balwani’s trial on the same charges Holmes faced is still underway.
Abraham Simmons, a spokesman for the US Attorney’s Office in San Francisco, didn’t immediately respond to a request for comment.
Read more: Elizabeth Holmes’s Ex May Hold Her Ticket to Less Prison Time
The case is U.S. v. Holmes, 18-cr-00258, U.S. District Court for the Northern District of California (San Jose).
