A Ninth Circuit panel has rejected former Theranos executive Ramesh “Sunny” Balwani’s request for rehearing en banc of his fraud conviction and nearly 13 year prison sentence, while issuing an amended opinion clarifying that there was ample evidence to support the verdict even assuming prosecutors failed to correct a witness’s testimony.
In a 55 page amended opinion issued Monday, the three-judge panel said it unanimously denied Balwani’s May petition for panel rehearing. The full Ninth Circuit was notified of Balwani’s request for rehearing en banc, and no judge called for a vote on whether to reconsider the case.
The denial comes roughly eight months after the same panel rejected a similar en banc rehearing request from former Theranos chief executive Elizabeth Holmes, who is serving an 11 year sentence following her conviction on four counts of investor fraud.
While the panel left most of its original February decision intact, it used the rehearing petition to clarify part of its analysis addressing allegedly inaccurate testimony from investor witness John Bryan Tolbert. The panel had previously affirmed Balwani’s conviction on all 12 counts, including investor fraud, patient fraud, and conspiracy.
On appeal, Balwani argued that his due process rights were violated under the Supreme Court’s 1959 decision in Napue v. Illinois, claiming prosecutors failed to correct false testimony from Tolbert and another investor, Chris Lucas. Balwani said the witnesses misstated Holmes’ representations about Theranos’ military partnerships and comments made during a December 2013 investor call that Tolbert secretly recorded.
In its original opinion, the panel rejected those arguments, finding that Balwani failed to show Lucas’ testimony was false and that any inaccuracies in Tolbert’s statements were likely the result of mistaken recollection. In the amended opinion, the judges elaborated on that reasoning.
“We assume without deciding that the government had a duty to correct the inaccurate statement,” the panel wrote. “Regardless, however, Balwani’s Napue claim fails under plain error review because the testimony did not seriously affect Balwani’s substantial rights.”
The panel emphasized that the jury heard similar testimony from at least two other witnesses who said Holmes claimed Theranos devices were used on medical evacuation helicopters. It also noted that Tolbert acknowledged during cross examination that he did not remember Holmes’ exact wording.
“And despite Balwani continually criticizing the government for not playing the recording of the call, Balwani did not attempt to use the recording to impeach Tolbert,” the panel added.
Balwani’s attorney, Jeffrey B. Coopersmith of Corr Cronin LLP, said Tuesday that defense counsel are reviewing the amended opinion and considering next steps.
“We respectfully disagree with the court’s ruling, including the notion that the prosecution’s failure to correct key testimony it knew was false did not affect Mr. Balwani’s rights,” Coopersmith said.
The government declined to comment.
Balwani and Holmes once led Theranos, the Silicon Valley blood testing startup that claimed it could perform dozens of tests using a small blood sample. The company achieved a valuation of at least $1 billion in 2015 before collapsing in 2018 amid regulatory scrutiny, civil lawsuits, criminal charges, and an SEC investigation.
Although Holmes and Balwani were indicted together, their cases were severed after Holmes accused Balwani, her former romantic partner, of years of sexual, physical, and emotional abuse. The two were tried separately in lengthy jury trials in 2021 and 2022.
Jurors acquitted Holmes of patient fraud charges and deadlocked on some investor fraud counts but convicted her on four counts of investor fraud. Balwani was convicted on all 12 counts against him.
Both defendants began serving prison sentences while appealing their convictions and an order holding them jointly and severally liable for $452 million in restitution to investor victims. In February, the Ninth Circuit affirmed the district court’s rulings in full.
U.S. Circuit Judges Mary Schroeder, Jacqueline Nguyen, and Ryan Nelson sat on the panel.
The government is represented by Robert Leach, Kelly I. Volkar, and Merry Jean Chan of the U.S. Attorney’s Office for the Northern District of California. Balwani is represented by Jeffrey B. Coopersmith of Corr Cronin LLP and attorneys from Orrick Herrington and Sutcliffe LLP.
The case is United States v. Ramesh Balwani, Case No. 22-10338, in the U.S. Court of Appeals for the Ninth Circuit.
