Elizabeth Holmes and attorneys from Williams & Connley head into the Northern District on Monday, January 13. (Photo: Jason Doiy/ALM) Elizabeth Holmes and attorneys from Williams & Connley head into the Northern District on Monday, January 13. (Photo: Jason Doiy/ALM)

SAN JOSE — The federal judge overseeing the criminal wire fraud case against Theranos founder Elizabeth Holmes and the company's former COO and president Ramesh Balwani didn't tip his hand during defense lawyers' arguments Monday seeking to knock out criminal charges.

Federal prosecutors have claimed the pair misled investors and patients, and that Holmes and Balwani knew Theranos' blood analyzer could not deliver on the public promises they were making to provide "fast, inexpensive, accurate, and reliable" tests.

But at a hearing Monday, U.S. District Judge Edward Davila did indicate he is skeptical of the government's contention that the alleged scheme's victims include doctors and patients whose blood testing services were paid for by insurance.

"I look at this and, candidly, I think they don't appear to be victims," said Davila toward the end of two-plus hours of arguments on defense motions to dismiss the case. Davila, however, stopped short of ruling, and said that, for now, the case will move forward on its current schedule, with a trial set to begin in August.

Holmes and Balwani were initially indicted in July 2018 on two counts of conspiracy to commit wire fraud and nine counts of wire fraud based on claims they knew Theranos' blood analyzer could not deliver on their promises to investors and patients.

Holmes' lawyers at Williams & Connolly asked Davila to knock out the indictment or, alternatively, prod the government for more specifics on its theory and proof in three separate motions filed in December, which were joined by Balwani's lawyers at Orrick, Herrington & Sutcliffe.

Williams & Connolly's Amy Saharia, who handled the lion's share of defense arguments Monday, called the prosecution a "massive case with undefined contours." The government, she said, has handed over 2 million documents in discovery and identified more than 300 articles about the company and 35 recorded presentations by Holmes during the relevant period, but has so far declined to identify any single statement it alleges was false or misleading. She said government prosecutors used "fudging language" in the indictment to keep the charges as "broad as they can possibly be so they can shift their theory as they go along." In particular, she said that prosecutors charged Holmes with knowing that her tests didn't "consistently" provide reliable results without providing a definition of what "consistently" means.

Orrick's Stephen Cazares also argued that the charges lacked the specificity necessary for his client to prepare a defense. "We need some definition and to the extent that the government doesn't want to define 'accuracy' and 'reliability'" that's problematic, he said.

Arguing for the government, Assistant U.S. Attorney John Bostic cautioned the judge that the defense lawyer wouldn't be happy with any version of the indictment since it was charging their clients with a scheme to mislead investors and patients about the viability of the company and its tests. He also argued the government doesn't have an obligation to detail the evidence it will introduce at trial in the indictment, and must only provide the defendants with notice of the crimes they are accused of committing to avoid possible double jeopardy.

"They encouraged patients and doctors to use these tests to make clinical decisions," Bostic said. "This was about giving patients valuable medical information that they could use and that their doctors could use to make decisions about health care."

Read more:

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