By Lauren Berg

Law360 (August 28, 2020, 10:25 PM EDT) -- Theranos' former chief operating officer urged a California federal judge Friday to toss two recent superseding indictments that elongate the amount of time he allegedly defrauded investors with false claims about the capabilities of the once high-flying startup's blood-testing technology, saying they come too late.

Ramesh "Sunny" Balwani, who worked alongside Theranos CEO Elizabeth Holmes, said the government's second and third superseding indictments last month come way too late and violate his right to a speedy trial, according to his motion to dismiss.

The two superseding indictments come more than two years after the original indictments and nearly five years after the government began its investigation, Balwani said. And despite prosecutors' assertions that only a few words have been changed, the indictments double the time period of the alleged scheme to defraud investors and the related conspiracy charge, he said.

Prosecutors changed the range from 2013 through 2015 to 2010 through 2015 and expanded the group of "investor" victims to include dozens of business partners and members of Theranos' board of directors.

Balwani said the government simply failed to include these details in the charges until now.

"As a result, Mr. Balwani will have to pivot from the work he has been doing since this case began, and potentially re-review much of the discovery — totaling millions of pages of documents in this case — to meet theories that the government could have raised earlier but chose not to," according to the motion.

Balwani said the burden constitutes substantial prejudice and violates his Sixth Amendment right to a speedy trial.

Citing the 2017 Northern District of California case U.S. v. Cutting , Balwani said that judge dismissed a late-filed superseding indictment under very similar circumstances, finding that there was a potential for prejudice to the defendant in the form of fading witness memories and stale evidence.

Balwani and Holmes were indicted in 2018, and Holmes was originally scheduled to face a monthslong jury trial that was supposed to kick off this month. But in the spring, U.S. District Judge Edward J. Davila pushed Holmes' trial to October because of the coronavirus outbreak and scheduled Balwani's trial for April 2021. Earlier this month, the judge again pushed Holmes' trial to March 2021.

Prosecutors filed the superseding indictments last month against the pair because Judge Davila trimmed some charges in February. But shortly after the fresh indictments were filed, Holmes asked Judge Davila to authorize discovery into the grand jury selection process.

California's Northern District suspended grand juries in late April until an undisclosed date in June because of the pandemic. But Holmes said she has "serious concerns" that changes in grand jury procedures caused by the pandemic have impacted her constitutional rights under the Sixth Amendment to a jury drawn from a "fair cross section of the community."

The government fired back in a response brief, arguing that her request is overly broad and alleges without basis that the jury was selected unfairly. Prosecutors also complained that discovery into the grand jury discovery process is a legal strategy that is becoming prevalent among defendants indicted during the COVID-19 pandemic.

Counsel for Balwani declined to comment Friday and a representative for the government did not immediately respond to a request for comment.

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.

Balwani is represented by Jeffrey B. Coopersmith, Walter F. Brown, Melinda Haag, Randall S. Luskey and Steve A. Cazares of Orrick Herrington & Sutcliffe LLP.

Holmes is represented by Kevin Downey, Lance A. Wade, Amy Mason Saharia and Katherine Trefz of Williams & Connolly LLP.

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

--Additional reporting by Dorothy Atkins, Dave Simpson and Mike Curley. Editing by Jay Jackson Jr.

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