In dueling sentencing memorandums filed late Wednesday night, lawyers for convicted Theranos executive Ramesh "Sunny" Balwani told a federal judge that their client should be put on probation and not serve any prison time.
Balwani was convicted of 12 counts of wire fraud and conspiracy based on his role in selling investors and patients on Theranos' malfunctioning blood-testing technology.
Prosecutors argued that the extent of the fraud and the need to "promote respect for the law" merit a prison term of 15 years.
Both sides referenced the recent sentencing of Balwani's co-conspirator and former lover, Theranos founder and CEO Elizabeth Holmes, in their filings with the court.
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U.S. District Judge Edward Davila, who presided over both trials, sentenced Holmes to more than 11 years in prison, despite her lawyers' request for a maximum sentence of 18 months of house arrest.
But Balwani, his lawyers argued, "is not the same as Elizabeth Holmes: he actually invested millions of dollars of his own money; he never sought fame or recognition; and he has a long history of quietly giving to those less fortunate (dating to well before his time at Theranos) without seeking recognition or benefit."
The memorandum continued: "There are truly evil people in this world who take pleasure in defrauding vulnerable people. There are also those who try to make the world a better place, even if they still engage in conduct that a jury finds violated those statutes."
Balwani, the lawyers said, falls into the latter category: He "did not profit, nor did he try to profit," from his fraudulent conduct. Instead, he "worked day and night to build a company that he thought would change the landscape of diagnostic testing for the better."
Prosecutors in their filing equated Balwani's role in the Theranos scandal with that of Holmes: "Balwani, with Holmes, was an equal participant in Theranos' efforts to quash the truth about its technology's limitations and failings."
Although Holmes and Balwani both touted the technology as able to run more than 200 blood tests based on a single drop of blood, prosecutors said, the evidence showed that at most the Theranos system could provide results only for 12 types of blood tests, and those only "with serious accuracy problems."
They argued that even if the judge applied the same analysis he did in the Holmes case -- a calculation that yielded a term of 135 months -- a longer term is warranted for Balwani because he was convicted of all 12 counts of the same indictment brought against Holmes, including "additional substantive fraud counts involving patients."
Holmes was convicted of only four counts, all related to investors, and acquitted of four counts related to patients. (In the Holmes trial, an additional patient count was dismissed due to a procedural issue with the prosecution's case, and the jury deadlocked on three of the investor charges.)
Balwani is scheduled to be sentenced in federal court in San Jose on Dec. 7.
