Blog Post by Andrea L. Moseley

This week the Grand Jury Target authors want to make sure you read an article about the law of conspiracy that is hot off the press.  You do not want to miss this timely article that lays out valuable defense strategies against the government’s crushing ability to use the flexibility of conspiracy law to prosecute white-collar crime.

The authors include  Sarah M. Hall,  an experienced former federal prosecutor and a member of her law firm’s White-Collar Criminal Practice, Internal Investigations & Government Enforcement group.  Sarah and two of her colleagues have written an article that will be published in the next issue of NACDL’s magazine: The Champion.  Sarah’s article is titled: The Evolution of Criminal Conspiracy Law and ‘Flipping the Script’ in United States v. Elizabeth Holmes.   

The article begins with a thorough exploration of the evolution of criminal conspiracy law in the United States.  The authors provide a short modern primer on how DOJ has used the flexibility of conspiracy law to its advantage in the prosecution of white collar crime, and presents some ways the defense can effectively challenge conspiracy charges.

Next, the authors take the reader into a fascinating case study.  The upcoming fraud trials of Theranos founder Elizabeth Holmes and former President and C.O.O. Ramesh “Sunny” Balwani provide the backdrop for the second part of the article.  Here, the authors consider how DOJ is expected to advance its case against Holmes and Balwani by using the government’s built-in advantages of conspiracy law.

Next, the article dispenses defense strategy gold.  The authors impart their wisdom on how the defense potentially can turn the tables on DOJ and try to weaponize conspiracy law and concepts as a defense tactic: by putting the government on trial and creating a narrative for the jury of a “press / government conspiracy.”

“Charging a conspiracy provides prosecutors with significant advantages, but defense lawyers have opportunities to fight back.”

You do not want to miss the authors’ valuable practice tips on how to push back against the government’s significant advantages when pursuing a conspiracy case.  The article will give you an insider’s view of the upcoming trials of Holmes and Balwani.  

A little preview of the facts:

“In June 2018, the U.S. Attorney’s Office for the Northern District of California announced the indictment of Holmes and Balwani. According to the original 2018 indictment, Holmes and Balwani were charged with two conspiracies: a conspiracy to defraud investors and a separate conspiracy to defraud doctors and patients. The charges detail an alleged $700 million scheme involving Theranos, a private health care and life sciences company with the stated mission of revolutionizing medical laboratory testing through innovative methods for drawing and testing blood and interpreting the resulting patient data.”  

The article describes how Holmes and Balwani will likely try to “flip the conspiracy script” against the government if they proceed to trial.  Read the whole article to see more details about how these cases will provide a perfect setting to analyze the advantages and disadvantages to both the government and the defense during federal conspiracy litigation.