United States v. Barai
| Decision Date | 20 December 2022 |
| Docket Number | 20-10318, No. 20-10347 |
| Citation | 55 F.4th 1245 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Sharmistha BARAI, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Satish Kartan, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William W. Fick (argued) and Amy Barsky, Fick & Marx LLP, Boston, Massachusetts; John J.E. Markham II (argued), Markham Read Zerner LLC, Boston, Massachusetts; Brian C. McComas, Law Office of Brian McComas, San Francisco, California; for Defendants-Appellants.
Katherine T. Lydon (argued), Assistant United States Attorney; Jason Hitt; Camil A. Skipper, Assistant United States Attorney, Appellate Chief; Phillip A. Talbert, Acting United States Attorney; Office of the United States Attorney; Sacramento, California; for Plaintiff-Appellee.
Virginia M. Bruner, McGuireWoods LLP, Richmond, Virginia; Sean A. McClelland and Carolyn J. Appel, McGuireWoods LLP, Washington, D.C.; Lindsey N. Roberson and Alyssa C. Wheeler, The Human Trafficking Institute, Fairfax, Virginia; for Amicus Curiae Human Trafficking Institute.
Before: Sidney R. Thomas, Milan D. Smith, Jr., and Lucy H. Koh, Circuit Judges.
Between February 2014 and October 2016, Defendant Sharmistha Barai and Defendant Satish Kartan recruited several "nannies" to live and work in their home. These nannies were subjected to a range of conditions, including: eighteen-hour workdays, limited food, isolation from their families, verbal and physical abuse, threats of violence, threats to call the authorities, and no pay. After an eleven-day jury trial, Barai and Kartan were convicted of conspiracy to commit forced labor in violation of 18 U.S.C. § 1594(b) and two substantive counts of forced labor in violation of 18 U.S.C. § 1589(a). Kartan was also convicted of fraud in foreign labor contracting in violation of 18 U.S.C. § 1351(a). Barai and Kartan challenge their convictions and sentences.
We publish this opinion to address Barai's and Kartan's challenge to the district court's refusal to give a specific unanimity instruction with respect to the means by which they obtained forced labor.1 We hold that 18 U.S.C. § 1589(a) lists alternative factual means, about which the jurors did not need to agree unanimously so long as they unanimously agreed that Barai and Kartan knowingly obtained forced labor by prohibited means.
Sharmistha Barai is a legal immigrant originally from Bangladesh. She is a physician and worked as a child psychiatrist. Satish Kartan is a naturalized United States citizen originally from India who worked nights as an IT engineer. The couple married in 2011, and had their first child, a daughter, in or around 2013. In 2015, the family moved to Stockton, California, where they lived when the events at issue occurred.
Between February 2014 and October 2016, Kartan advertised live-in nanny positions on South Asian classified listing services. The advertisements stated that the nannies would be paid for childcare and domestic work. The trial evidence showed that during this period, Barai and Kartan recruited at least six nannies to live and work in their Stockton home.
The substantive forced labor charges were predicated on Barai's and Kartan's treatment of victim Rathanam Thamma and victim Puspanjali Thapa, respectively.
Thamma worked for Barai and Kartan for one month and twenty days from July 2016 to August 2016. She came to the United States on a tourist visa prepared by a broker in which she represented that she was visiting a nonexistent daughter in New Jersey. Consistent with the other victims, Thamma testified at trial that her work hours were from 6:00 AM to 12:00 AM. During that time, she did not get enough food or sleep. She was not allowed to lock the door to her room or use the bathroom during the two periods during which she was required to feed the baby, totaling nine hours per day. She did not have a working cell phone to contact her family, so she gave Kartan $500, the only money she brought with her from India, to buy her one. Kartan never gave her a phone or returned her money. When she was allowed to use Kartan's phone to contact her family, Barai and Kartan were present for the calls and even turned off a fan in the room.
When Thamma complained to Kartan that she could not work the long hours, Kartan told Barai. Barai then yelled at Thamma and said, Kartan berated Thamma, clapped his hands in her face, and threatened her for "telling on us" to her family. Barai also called Thamma derogatory names and, on at least one occasion, struck Thamma in the mouth for asking to bring in her drying clothes during hours when she was required to feed the baby.
Barai and Kartan required that Thamma warm her hands using a gas stove before handling the baby. Once, when the baby had not had a bowel movement for several days, Barai and Kartan concluded that Thamma's hands were not warm enough. They stood on either side of her and watched while she warmed her hands. Barai then pushed Thamma's hands closer to the fire. Thamma testified that her hands were burned and that she experienced pain. Barai and Kartan did not offer Thamma any assistance after she was burned. About three days later, after Thamma left the house, Homeland Security Investigations agents took Thamma to an emergency room. There, a doctor diagnosed her with "first-and second-degree burns" on both of her hands.
Thamma testified that Barai's and Kartan's actions scared her. She said, One day, when Barai and Kartan left the house, Thamma went to a neighbor's house, and the neighbors called the police to assist her. Thamma was never paid for her work.
Another victim, Thapa, worked for Barai and Kartan for five days in September 2016. Her working hours were from 5:00 AM to 11:00 PM, or later, and Kartan woke her up every morning by pounding on her door. She was not allowed to take breaks. When she tried to prepare food while sitting down, Kartan told her to stand up and took her chair away. She was not allowed to eat the food that she prepared for the family and was instead told to eat leftovers that were three to four days old. She said that these leftovers were "old, wet rice" that made her sick. Kartan and Barai verbally berated her, calling her an "illegitimate woman," a "shameless person," and a "whore." She also testified that Barai and Kartan "would come close to me as if they're going to beat me," call her derogatory names, and would shake their hands four to six inches from her face. She had her own cell phone, but whenever she used it, Kartan tried to grab the phone from her. When she confronted Kartan about leaving, he told her "no, no, no, no, work, work."
Thapa testified that she was scared of Kartan and Barai, and she kept working. When Thapa tried to leave, she lied to Kartan, telling him that her son needed to bring her a suitcase, and asked Kartan for the address. Kartan refused to give her the address and later gave her the wrong address. She had to call a friend and get instructions on how to find the house number on the outside of the door. She testified that when she asked to leave, Kartan threatened to call the police to scare her. Eventually, Thapa's nephew came to get her. She asked Kartan for the gate key so her nephew could enter the gated community. Kartan refused and told her to leave right away. Thapa was also never paid for her work.
The district court presided over an eleven-day jury trial, during which similar evidence of Barai's and Kartan's treatment of other nannies was admitted.2 At the close of the trial, the district court instructed the jury. The instruction for the two substantive forced labor charges under § 1589(a) stated that the government needed to prove the following three elements beyond a reasonable doubt:
Barai and Kartan proposed an instruction that would have told the jury that they must be unanimous as to which of the four prohibited means Barai and Kartan used to compel forced labor. The district court rejected the proposed instruction. The jury returned a unanimous guilty verdict on the operative counts.3
Barai and Kartan argue that the district court's forced labor instruction was erroneous because § 1589(a)'s paragraphs each describe different legal elements. We "review[ ] for abuse of discretion the district court's denial of a defendant's request for a specific unanimity instruction." United States v. Tuan Ngoc Luong , 965 F.3d 973, 985 (9th Cir. 2020) (citation omitted). Although ordinarily, a general instruction that the verdict must be unanimous is sufficient, "[a] specific unanimity instruction is necessary ‘where it appears that "there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed ... acts" ’ consisting of different legal elements." Id. (quoting United States v. Anguiano , 873 F.2d 1314, 1319 (9th Cir. 1989) ).
Calling a particular part of a statute an "element," as opposed to a "means," is...
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