Metropolitan News-Enterprise

 

Wednesday, December 21, 2022

 

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Ninth Circuit:

Couple’s Convictions for Enslaving Nannies Affirmed

Koh Writes for Panel in Saying Government Had Only to Prove Forced-Labor Was Committed by

One of the Statutorily Enumerated Means; Jury’s Unanimity as to Which Means Not Required

 

By a MetNews Staff Writer

 

The Ninth U.S. Circuit Court of Appeals yesterday affirmed the convictions of a husband and wife who lured job applicants for the position of a nanny to their home through false advertisements, then virtually enslaved the women, forcing them to work 18 hours a day without pay, providing paltry sustenance, barring their use of bathroom facilities except during specified periods of the day, and hitting, burning, and verbally abusing them.

Sharmistha Barai, then a medical doctor who practiced child psychiatry, and her husband, Satish Kartan, an IT engineer, were convicted by a jury on March 14, 2019 of conspiracy to obtain forced labor and two counts of obtaining forced labor. Each was sentenced on October 2020 by District Court Judge Morrison C. England Jr. of the Eastern District of California to 15 years and eight months in prison.

The convictions of the Stockton couple stemmed from the mistreatment of two women, among several, who responded to ads, on the Internet and in India-based newspapers, seeking child-care and domestic services, promising wages.

 

BARAI

KARTAN

 

Single Issue Addressed

The opinion, authored for a three-judge panel by Circuit Judge Lucy H. Koh, addressed a single contention: that the forced-labor statute, 18 U.S.C. §1589, in subd. (a), lists several alternative methods for compelling performance by the victim and that England erred in refusing to instruct the jury that there must be unanimity as to which method was used. Other contentions were addressed in a separate memorandum opinion.

England told jurors that, for a conviction, the defendant must have secured the “labor or services of another person,” must have “acted knowingly,” and must have received the benefits “through at least one of the following prohibited means,” proceeding to enumerate them. They were:

“a. force, threats of force, physical restraint, or threats of physical restraint to that person; [¶] b. serious harm or threats of serious harm to that person; [¶] c. the abuse or threatened abuse of law or legal process: or [¶] d. a scheme, plan or pattern intended to cause the person to believe that if that person did not perform such labor or services that person or another person would suffer serious harm or physical restraint….”

“[T]he question in this case is: Are the listed alternatives in the forced labor statute elements or means?” Koh wrote. “We hold that the listed alternatives of 18 U.S.C. § 1589(a) are factual means, rather than distinct legal elements.”

Statute Mentions ‘Means’

She explained:

“By its own terms, the forced labor statute indicates that the listed alternatives are means by which a defendant might commit forced labor. The word ‘means’ is used five times in 18 U.S.C. § 1589(a)….”

The jurist declared:

“We conclude that the general unanimity instruction was sufficient. All that was required for the jurors to convict Barai and Kartan under the forced labor statute was for the jurors to unanimously agree that Barai and Kartan knowingly obtained forced labor by one or more of the prohibited means listed in 18 U.S.C. § 1589(a). The district court did not abuse its discretion in declining to give a specific unanimity instruction to the jury.”

Other Contentions

A separate memorandum opinion—signed by Koh and by Circuit Judge Milan D. Smith Jr. and Senior Circuit Judge Sidney Thomas—addressed the sufficiency of the evidence to support the conspiracy and forced-labor convictions, as well as Kartan’s conviction for fraud in foreign labor contracting, reciting, in part:

“The jury heard evidence that Thamnia worked eighteen-hour workdays with no breaks or food. Thamma did not have a working cell phone, gave Kartan the only money she brought from India to purchase one, and never received the phone or her money. Barai threatened to kill Thamma and put her in the garbage. Barai hit Thamma in the mouth for asking to bring Thamma’s clothes inside when she was supposed to feed the baby, and Barai burned Thamma’s hands using a gas stove.

“The jury also heard that Thapa worked similar hours with no breaks or food, and that Kartan repeatedly tried to take Thapa’s phone away from her when she tried to use it. Defendants also came ‘close to [Thapa] as if they’re going to beat [her]’ and called her derogatory names, which caused her to be scared and continue working. When Thapa tried to leave, Kartan refused to give her the address, gave her the wrong address, and threatened to call the police. The jury also saw similar evidence with respect to other nannies.”

Length of Sentence

As to the length of the sentences, the panel said:

“Barai’s and Kartan’s 188-month sentences fell in the middle of the Guidelines range. Although the enhancements raised the length of their sentences significantly above the base level offense…, each of these enhancements was justified by the record. Additionally, the district court did not abuse its discretion in refusing to grant a downward variance in Barai’s sentence to account for her ineligibility for good-time credit provided by the First Step Act  because Barai is a noncitizen and may become removable from the United States.”

The case is U.S. v. Barai, 20-10318.

 On June 30, 2021, Barai surrendered her medical license to the Medical Board of California.

 

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