Day 45 - December 13, 2021
Judge Davila settled major charge disputes concerning willfulness, Holmes's personal knowledge, and investor terminology. He also limited disputed CMS material to notice rather than its truth and requested clarifying instruction language.
Full day summary
1. Final Instructions, Verdict Form, and CMS Evidence
Judge Davila addressed final jury instructions, the verdict form, and the limited use of disputed CMS report exhibits.
Highlights
Final Jury Instructions and Verdict Form ConferencerulingJudge Davila ruled that he would give the disputed language in Instruction 17 defining willfulness over the government's objection.Final Jury Instructions and Verdict Form ConferencerulingThe defense argued that identifying investors by name in the count instructions would improperly assist the government in meeting its burden. The court ultimately declined to include the names and left the government to make the connections in closing argument.Final Jury Instructions and Verdict Form ConferencerulingAfter extended argument over whether knowledge held by Balwani or Theranos employees could be imputed to Holmes, the court accepted one defense-proposed sentence requiring Holmes herself to possess the relevant knowledge, rejected a second proposed sentence, and retained the word "omissions."Final Jury Instructions and Verdict Form Conference“TO THE EXTENT THAT MR. BALWANI RECEIVED INFORMATION FROM THERANOS EMPLOYEES, BUT THAT INFORMATION WAS NOT COMMUNICATED TO MS. HOLMES, IT IS IMPROPER FOR THE JURY TO INFER THAT MS. HOLMES HAS KNOWLEDGE OF THAT INFORMATION SIMPLY BECAUSE THE GOVERNMENT IS ALLEGING THEM TO BE COCONSPIRATORS.”— Amy Mason SahariaThe statement captures the defense's central reason for requesting a tailored instruction on Holmes's personal knowledge.CMS Report Admissibility and Motion-to-Strike HearingobjectionThe defense renewed its request to strike Exhibits 4621A and 4621B under Rule 403, arguing that neither should be received for its truth and that the absence of a CMS witness left inflammatory language without adequate context.CMS Limiting Instruction and Remaining Charge IssuesrulingThe court determined that the portion later designated Exhibit 4621A, like the other cited pages, was for notice rather than the truth and favored clarifying that limitation in the final instructions. The parties were directed to propose language promptly.CMS Limiting Instruction and Remaining Charge Issues“THE COURT -- LET ME JUST SAY, I INTEND TO FIND THAT THEY WERE JUST FOR NOTICE, SO WE WILL NEED TO CORRECT THE RECORD, OR IN THE INSTRUCTIONS SOMEHOW TO INDICATE THAT -- INFORM THE JURY THAT THE A PORTION -- WE'LL CALL IT THE A PORTION -- WAS ALSO NOT FOR THE TRUTH, BUT JUST FOR NOTICE.”— Edward J. DavilaJudge Davila stated the intended evidentiary limitation that the remaining CMS instruction needed to communicate.CMS Limiting Instruction and Remaining Charge IssuesrulingAfter considering alternatives such as “investors,” the court selected “alleged victims” for the disputed instruction language.