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From former AUSA, and current white-collar defense attorney Ken White: "She faces a max of 65 years (3x20 + 1x5). And it's not at all clear she'll do less tha

From former AUSA, and current white-collar defense attorney Ken White: "She faces a max of 65 years (3x20 + 1x5). And it's not at all clear she'll do less than 20." Apparently the sentences will not necessarily be served concurrently. https://twitter.com/Popehat/status/1478170494130003976?s=20 https://twitter.com/Popehat/status/1478170494130003976?s=20

tptacek 5y ago
Yeah, that's a surprising thing for him to say, since he's generally one of the loudest voices against this "add up the sentences" stuff. The grouping rules are in the sentencing guidelines too! Go look!
- throwawaylinux 5y ago
  Why does that make it surprising?
  - tptacek 5y ago
    For one thing, because he's the author of this pretty famous post: https://www.popehat.com/2013/02/05/crime-whale-sushi-sentence-eleventy-million-years/ https://www.popehat.com/2013/02/05/crime-whale-sushi-sentenc... For another, because the guidelines are pretty specific in this case --- that 2B1.1 crimes are charged according to --- well, here's the wording from the guidelines: "the applicable base offense level is determined by the count of conviction that provides the highest statutory maximum term of imprisonment.". So "3x20" seems off the table.
    - throwawaylinux 5y ago
      https://twitter.com/Popehat/status/1478172078092128256 https://twitter.com/Popehat/status/1478172078092128256 "They run concurrently except to the extent necessary to serve the full sentence the judge selects." When he said it's not clear she'll do less than 20, I don't think he meant she might get more than 20, just that she might get 20.
      - tptacek 5y ago
        The thing here is, you get up to around 20 years just with a single wire fraud count, because the amounts involved here are so high. We're at $143MM in losses on the three wire fraud charges together (2B1.1 states they're to be summed up), which gets you a 26(!)-level enhancement from the base level of 7. That's 12 years (at the bottom of the range), and every other enhancement you take after level 33 is another ~4 years; there are 3-4 enhancements (like "sophisticated means") that seem likely to apply. On the flip side, given the huge sums involved, it's not easy to make the numbers make sense served consecutively. Here's an article about grouping: https://www.josephabramslaw.com/understanding-grouping-rules-under-the-federal-sentencing-guidelines/ https://www.josephabramslaw.com/understanding-grouping-rules...
        throwawaylinux 5y ago
        Yes there's lots of very high and very low guesses as to what she might get going around. I'm just commenting here specifically on this twitter guy's opinion.
        tptacek 5y ago
        I missed some guidelines stuff; there's a separate section for role in the offense, and another for obstruction. The tally I get: 7 (Base offense) +24 ($140MM in damages) +2 (10+ victims) +2 (Sophisticated means) +4 (Leading role) +2 (Abuse of public trust) +2 (Obstructed investigations) That gets us level... 43. Yikes. Consecutive vs. concurrent isn't the issue here; doing a $140MM wire fraud puts you on the hook for an insane sentence. So this is a case where the whale sushi sentence is... theoretically possible?! Wow.
        roywiggins 5y ago
        Mitchell Eppner agrees with you: https://mitchellepner.substack.com/p/elizabeth-holmes-found-guilty-on https://mitchellepner.substack.com/p/elizabeth-holmes-found-...
- dragonwriter 5y ago
  It's not surprising, because there's a very good argument that the guideline range for what she has been convicted of (and taking into account her conduct at trial, which is relevant) is life, with the actual sentence capped at the statutory maximum of the offenses stacked consecutively rather than concurrently. Now, it's possible that the court wouldn't agree with that analysis and find slightly fewer points, or that it would agree but would make a downward departure, but...
- hn_throwaway_99 5y ago
  He was just responding to this paragraph in the NPR article: > Holmes' sentencing date has not yet been set. But she faces the maximum penalty of 20 years behind bars, though legal experts say she will likely face a lesser punishment. That is, he wasn't arguing that she will serve the max of 65, just that the max is much higher than what NPR reported.
hn_throwaway_99 5y ago
Argh! The linked NPR article on that tweet had me yelling at my phone: > It is unusual for tech executives to face criminal changes when their startups collapse under the weight of unrealized promises. That's because it's not illegal to over promise about your future results. It is illegal to lie about simple facts regarding the present state of your business to attract funding. I'm so sick of so many press outlets framing this as just "fake it til you make it" gone wrong, "a page from the Silicon Valley playbook", or that it's just an over hyped company take to extremes. No, Theranos was outright, egregious fraud, and most startups that "collapse under the weight of unrealized promises" are not committing fraud.
- Shacklz 5y ago
  > No, Theranos was outright, egregious fraud, and most startups that "collapse under the weight of unrealized promises" are not committing fraud. Most startups don't get the traction and publicity that Theranos got, however. I wouldn't be surprised if a lot of founders would go to similar lengths given the chance; they just happen to have someone apply some reality check on them before things get out of hand.
  - amitport 5y ago
    Look, there is still a big jump from the usual founder sharing partial vague optimistic statments (e.g., "our algorithm is great"), to the not so common direct lie (e.g., "we tested it with statistical significance, it works, here you can see these results on these real world inputs", while completely faking the results)
  - vxNsr 5y ago
    That fruit juicer company over promised and under delivered, wasn't fraud tho.
    - hn_throwaway_99 5y ago
      Actually, Juicero over promised AND over delivered, just in the wrong way. I saw tons of teardowns of their machine saying how over-engineered it was for something that squeezes a bag of precut fruits and veggies.
bambax 5y ago
I hate Holmes as much as anyone [0], but life in prison (65 years when you're 37 = out when you're 102) sounds unreasonably harsh. She's not convicted of actually, physically harming anyone, esp. patients (which doesn't mean she didn't -- but she wasn't found guilty of that); she's convicted of lying to investors. That's obviously bad, and should carry some form of punishment. Maybe 5 years? But life?? That's insane. [0] I read John Carreyrou's book when it came out.
- Hnrobert42 5y ago
  5 years?! People can get that much for stealing a car or jewelry. She stole tens of millions! Not only that, she did it through fraud. It’s not like you can just build a higher fence. For the system to work, it must be free of fraud.
  - bambax 5y ago
    Fraud is different from theft. Fraud is manipulating consent. Theft is taking by force what isn't yours. I don't know why everyone seems to be conflating the two everywhere in this thread.
    - Hnrobert42 5y ago
      I did not conflate them. I directly compared them. In both theft and fraud, the victim is deprived of of something. That’s why people consider them similar crimes.
      - bambax 5y ago
        The question is not just the state of the victim, it is (mainly) the intent of the perpetrator and the means used. That's why you don't get the same sentence if you harm somebody by accident or if you meant to do it.
      - blitzar 5y ago
        Accidental death and murder both result in someone dead. They are not similar crimes.
wayoutthere 5y ago
And to note, these are federal charges so there’s no parole. When you get 20 years in federal time, you may get some time off for good behavior but you’re going to serve most of your sentence.
- CRConrad 5y ago
  https://news.ycombinator.com/item?id=29795059 https://news.ycombinator.com/item?id=29795059
bufferoverflow 5y ago
My prediction: sentenced to 20, out in 10.
- CRConrad 5y ago
  https://news.ycombinator.com/item?id=29793966 https://news.ycombinator.com/item?id=29793966

tptacek 5y ago

Yeah, that's a surprising thing for him to say, since he's generally one of the loudest voices against this "add up the sentences" stuff. The grouping rules are in the sentencing guidelines too! Go look!

throwawaylinux 5y ago
Why does that make it surprising?
- tptacek 5y ago
  For one thing, because he's the author of this pretty famous post: https://www.popehat.com/2013/02/05/crime-whale-sushi-sentence-eleventy-million-years/ https://www.popehat.com/2013/02/05/crime-whale-sushi-sentenc... For another, because the guidelines are pretty specific in this case --- that 2B1.1 crimes are charged according to --- well, here's the wording from the guidelines: "the applicable base offense level is determined by the count of conviction that provides the highest statutory maximum term of imprisonment.". So "3x20" seems off the table.
  - throwawaylinux 5y ago
    https://twitter.com/Popehat/status/1478172078092128256 https://twitter.com/Popehat/status/1478172078092128256 "They run concurrently except to the extent necessary to serve the full sentence the judge selects." When he said it's not clear she'll do less than 20, I don't think he meant she might get more than 20, just that she might get 20.
    - tptacek 5y ago
      The thing here is, you get up to around 20 years just with a single wire fraud count, because the amounts involved here are so high. We're at $143MM in losses on the three wire fraud charges together (2B1.1 states they're to be summed up), which gets you a 26(!)-level enhancement from the base level of 7. That's 12 years (at the bottom of the range), and every other enhancement you take after level 33 is another ~4 years; there are 3-4 enhancements (like "sophisticated means") that seem likely to apply. On the flip side, given the huge sums involved, it's not easy to make the numbers make sense served consecutively. Here's an article about grouping: https://www.josephabramslaw.com/understanding-grouping-rules-under-the-federal-sentencing-guidelines/ https://www.josephabramslaw.com/understanding-grouping-rules...
      - throwawaylinux 5y ago
        Yes there's lots of very high and very low guesses as to what she might get going around. I'm just commenting here specifically on this twitter guy's opinion.
        tptacek 5y ago
        I missed some guidelines stuff; there's a separate section for role in the offense, and another for obstruction. The tally I get: 7 (Base offense) +24 ($140MM in damages) +2 (10+ victims) +2 (Sophisticated means) +4 (Leading role) +2 (Abuse of public trust) +2 (Obstructed investigations) That gets us level... 43. Yikes. Consecutive vs. concurrent isn't the issue here; doing a $140MM wire fraud puts you on the hook for an insane sentence. So this is a case where the whale sushi sentence is... theoretically possible?! Wow.
        roywiggins 5y ago
        Mitchell Eppner agrees with you: https://mitchellepner.substack.com/p/elizabeth-holmes-found-guilty-on https://mitchellepner.substack.com/p/elizabeth-holmes-found-...
dragonwriter 5y ago
It's not surprising, because there's a very good argument that the guideline range for what she has been convicted of (and taking into account her conduct at trial, which is relevant) is life, with the actual sentence capped at the statutory maximum of the offenses stacked consecutively rather than concurrently. Now, it's possible that the court wouldn't agree with that analysis and find slightly fewer points, or that it would agree but would make a downward departure, but...
hn_throwaway_99 5y ago
He was just responding to this paragraph in the NPR article: > Holmes' sentencing date has not yet been set. But she faces the maximum penalty of 20 years behind bars, though legal experts say she will likely face a lesser punishment. That is, he wasn't arguing that she will serve the max of 65, just that the max is much higher than what NPR reported.

hn_throwaway_99 5y ago

Argh! The linked NPR article on that tweet had me yelling at my phone: > It is unusual for tech executives to face criminal changes when their startups collapse under the weight of unrealized promises. That's because it's not illegal to over promise about your future results. It is illegal to lie about simple facts regarding the present state of your business to attract funding. I'm so sick of so many press outlets framing this as just "fake it til you make it" gone wrong, "a page from the Silicon Valley playbook", or that it's just an over hyped company take to extremes. No, Theranos was outright, egregious fraud, and most startups that "collapse under the weight of unrealized promises" are not committing fraud.

Shacklz 5y ago
> No, Theranos was outright, egregious fraud, and most startups that "collapse under the weight of unrealized promises" are not committing fraud. Most startups don't get the traction and publicity that Theranos got, however. I wouldn't be surprised if a lot of founders would go to similar lengths given the chance; they just happen to have someone apply some reality check on them before things get out of hand.
- amitport 5y ago
  Look, there is still a big jump from the usual founder sharing partial vague optimistic statments (e.g., "our algorithm is great"), to the not so common direct lie (e.g., "we tested it with statistical significance, it works, here you can see these results on these real world inputs", while completely faking the results)
- vxNsr 5y ago
  That fruit juicer company over promised and under delivered, wasn't fraud tho.
  - hn_throwaway_99 5y ago
    Actually, Juicero over promised AND over delivered, just in the wrong way. I saw tons of teardowns of their machine saying how over-engineered it was for something that squeezes a bag of precut fruits and veggies.

bambax 5y ago

I hate Holmes as much as anyone [0], but life in prison (65 years when you're 37 = out when you're 102) sounds unreasonably harsh. She's not convicted of actually, physically harming anyone, esp. patients (which doesn't mean she didn't -- but she wasn't found guilty of that); she's convicted of lying to investors. That's obviously bad, and should carry some form of punishment. Maybe 5 years? But life?? That's insane. [0] I read John Carreyrou's book when it came out.

Hnrobert42 5y ago
5 years?! People can get that much for stealing a car or jewelry. She stole tens of millions! Not only that, she did it through fraud. It’s not like you can just build a higher fence. For the system to work, it must be free of fraud.
- bambax 5y ago
  Fraud is different from theft. Fraud is manipulating consent. Theft is taking by force what isn't yours. I don't know why everyone seems to be conflating the two everywhere in this thread.
  - Hnrobert42 5y ago
    I did not conflate them. I directly compared them. In both theft and fraud, the victim is deprived of of something. That’s why people consider them similar crimes.
    - bambax 5y ago
      The question is not just the state of the victim, it is (mainly) the intent of the perpetrator and the means used. That's why you don't get the same sentence if you harm somebody by accident or if you meant to do it.
    - blitzar 5y ago
      Accidental death and murder both result in someone dead. They are not similar crimes.

wayoutthere 5y ago

And to note, these are federal charges so there’s no parole. When you get 20 years in federal time, you may get some time off for good behavior but you’re going to serve most of your sentence.

CRConrad 5y ago
https://news.ycombinator.com/item?id=29795059 https://news.ycombinator.com/item?id=29795059

bufferoverflow 5y ago

My prediction: sentenced to 20, out in 10.

CRConrad 5y ago
https://news.ycombinator.com/item?id=29793966 https://news.ycombinator.com/item?id=29793966