Prosecutors have proposed sentencing Elizabeth Holmes in September and plan to drop 3 counts against her that deadlocked the jury

• Prosecutors have proposed sentencing Elizabeth Holmes in September following her conviction last week.
• This would allow the Theranos founder to remain free on a $500,000 bond until then.
• The government will also dismiss three counts against Holmes on which the jury deadlocked.

Prosecutors in Elizabeth Holmes’ fraud trial have suggested a tentative sentencing date in September for the Theranos founder.

Holmes was found guilty on three counts of wire fraud and one count of conspiracy to defraud investors in federal court last week. She was acquitted on four other counts of wire fraud and conspiracy, and the jury couldn’t reach a verdict on the remaining three charges against her.

The government proposed setting a sentencing hearing on September 12 for Holmes, according to a new court document. Until then, Holmes would remain free on a $500,000 bond secured by property. The proposal still needs the judge’s approval. 

Prosecutors also said in the filing that they will dismiss the three counts on which jurors deadlocked, rather than re-trying Holmes on those charges.

The filing said sentencing Holmes after Labor Day “would be appropriate in light of ongoing proceedings in a related matter.” This refers to the upcoming trial of Ramesh “Sunny” Balwani, who is Theranos’ former president and COO and Holmes’ ex-boyfriend. Balwani faces nine counts of wire fraud and two counts of conspiracy to commit wire fraud, which are the same counts that were brought against Holmes.

A separate court filing on Wednesday proposed starting jury selection in Balwani’s trial on March 9 and beginning opening statements on March 15. Under this timeline, Balwani’s trial would likely wrap up by Holmes’ tentative September sentencing, meaning he could face sentencing around the time she does. 

Rachel Maimin, a partner at Lowenstein Sandler who specializes in white collar criminal defense, says it’s common for co-defendants in cases like these to be sentenced around the same time.

“This allows for consistency in sentencing — that similarly situated defendants are treated the same, and differences in culpability are accurately reflected in the sentences of both defendants,” she told Insider.

The wait might hurt Holmes, though, as Balwani could try to shift blame onto Holmes during his trial, which could increase possible prison time. 

“There is typically a disadvantage to a convicted defendant for the court to go through a subsequent trial on related facts,” Maimin says. “The judge will hear in person at least some of the evidence again, which reinforces it, and perhaps even new evidence that reflects even more poorly on the defendant convicted first. The record of the second trial is fair game at both sentencings.”

It’s possible Holmes could try to cooperate with prosecutors in Balwani’s trial and testify against him in exchange for a more lenient sentencing, though Maimin says this is unlikely.

“Presumably, Holmes would have to admit to any crimes she committed, and since she testified and essentially denied doing anything wrong under oath, there would be a lot of fodder on cross-examination for Balwani’s defense attorneys to accuse Holmes of perjuring herself in her trial or switching her story to get out from under her conviction,” she said. “Holmes would have these weaknesses as a witness, but if she has incredibly helpful information and presents well, it might be worth the risk for the government to use her.”

“The government will also have to engage in an analysis of whether, after refusing to take responsibility and, according to them, perjuring herself, it is in the interest of justice for her to receive any benefits even if it increases the likelihood of a conviction against Balwani,” Maimin added. “If the case against Balwani is very strong, it makes it less likely that the government would be willing to offer credit to her for cooperation.”