By Dorothy Atkins

Law360 (April 15, 2020, 5:35 PM EDT) -- A California federal judge on Wednesday pushed back ex-Theranos CEO Elizabeth Holmes' August criminal trial date to October due to coronavirus concerns, but declined Holmes' request to reschedule the trial for 2021 in light of new charges that prosecutors say they plan to pursue.

During a telephonic status conference, U.S. District Judge Edward J. Davila rescheduled Holmes' high-profile jury trial for Oct. 27, which was originally set to begin in August with jury selection slated for late July.

The June 2018 indictment initially charged Holmes and former Theranos Chief Operating Officer Ramesh "Sunny" Balwani with 11 criminal counts, alleging they defrauded investors and uninsured patients by making false claims about the capabilities of Theranos' blood testing technology.

Judge Davila recently cut some charges from the case and severed Holmes' trial from Balwani's case. In the severance order on March 20, the judge said Holmes' trial would go forward as scheduled, but earlier this month, he asked the parties to submit alternative trial schedules due to the pandemic.

Holmes proposed a schedule with a trial beginning in late October, while prosecutors proposed a trial to begin in early October.

But Holmes' counsel, Lance A. Wade of Williams & Connolly LLP, told Judge Davila on Wednesday that prosecutors recently informed the defense team that the government plans to file a superseding indictment once shelter-in-place orders have been lifted and prosecutors can convene a grand jury.

The superseding indictment would add on two additional wire fraud counts related to patients who paid for Theranos testing and an allegation that the conspiracy to defraud investors began no later than 2010, according to Wade.

Wade said that while the language of the indictment might change minimally, the "fundamental scope of the indictment" changes significantly and it fundamentally changes their preparation.

He noted that the new charges expand who is considered an investor and suggest that Holmes defrauded Walgreens in some way, even though it had a contractual relationship with Theranos. He added that the defense team is frustrated that the government waited until now to add on the charges.

"Why it took until this point to add the charges to this case is unclear to the defense" he said. "It's also to some frustration given all the work done thus far."

Wade also argued that holding the lengthy high-profile trial in October could put jurors, the public and the court at risk, since it will likely draw crowds.

"We certainly don't think it's prudent to start a trial if the public health environment suggests that there's a substantial increased risk of a mistrial," he said.

However, federal prosecutor Robert S. Leach argued that the trial can be held in October, even with the new charges.

"We fundamentally disagree that this is a sea change," he said.

Leach said it's not unexpected that the government would want to pursue additional charges after Holmes filed a motion to dismiss in December and given that Judge Davila threw out some charges in February.

"I don't think a superseding instrument should come as a surprise," he said.

He also noted that Walgreens and the investors have been named in the indictment "since day one" and the government doesn't think that the new charges would expand the length of the trial or require additional witnesses.

Leach added that they've already produced over 20 million documents in discovery and anything additional that would be produced in discovery would be "quite negligible."

"We want the defense to be prepared," he said. "But we don't want the date to move. I just don't think changes in the charging instrument are impediments to proceeding with the trial in October."

At the end of the hearing, Judge Davila set the trial for Oct. 27 and the next status conference for July 20, while acknowledging that "there's a lot of 'ifs' here."

Judge Davila stressed that public health is currently a priority, but he said if prosecutors are able to get a grand jury together to file the superseding indictment in May, it would "be ideal" to have motion practice before late July.

"I'm hopeful that things change in our country and in our region that we could have in-person meetings then," the judge added.

The government is represented by John C. Bostic, Jeffrey Schenk, Robert S. Leach and Vanessa Ann Baehr-Jones of the U.S. Attorney's Office for the Northern District of California.

Holmes is represented by Kevin Downey and Lance A. Wade of Williams & Connolly LLP and John Cline.

The case is U.S. v. Elizabeth Holmes et al., case number 5:18-cr-00258, in the U.S. District Court for the Northern District of California.

--Additional reporting by Dave Simpson. Editing by Alyssa Miller.

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