FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

 v. 

SHARMISTHA BARAI, 

Defendant-Appellant.

No. 20-10318 

D.C. Nos. 

2:16-cr-00217-

MCE-2 

2:16-cr-00217-

MCE 

OPINION

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

 v. 

SATISH KARTAN, 

Defendant-Appellant.

No. 20-10347 

D.C. Nos. 

2:16-cr-00217-

MCE-1 

2:16-cr-00217-

MCE 

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., District Judge, Presiding
2 UNITED STATES V. BARAI

Argued and Submitted October 19, 2022 

San Francisco, California

Filed December 20, 2022 

Before: Sidney R. Thomas, Milan D. Smith, Jr., and Lucy 

H. Koh, Circuit Judges. 

Opinion by Judge Koh 

SUMMARY*

Criminal Law

Affirming the district court, the panel held that 18 U.S.C. 

§ 1589(a)—under which the defendants were convicted of 

two counts of forced labor—lists alternative factual means, 

about which the jurors did not need to agree unanimously so 

long as they unanimously agreed that the defendants 

knowingly obtained forced labor by prohibited means. 

The panel held that the district court therefore did not 

abuse its discretion in declining to give a specific unanimity 

instruction, and addressed the defendants’ other challenges 

in a concurrently filed memorandum disposition. 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
UNITED STATES V. BARAI 3 

COUNSEL

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 DefendantsAppellants. 

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.

OPINION

KOH, Circuit Judge: 

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 elevenday jury trial, Barai and Kartan were convicted of conspiracy 
4 UNITED STATES V. BARAI

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.

BACKGROUND AND PROCEEDINGS BELOW

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 

1 We address the remainder of Barai’s and Kartan’s challenges in a 

concurrently filed memorandum disposition.
UNITED STATES V. BARAI 5

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, “This is my house. I will kill you and put 

you in the garbage. You come to my address so you have to 

work.” 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 
6 UNITED STATES V. BARAI

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, “If I am here, they will kill me. I have 

to go somewhere. If I’m staying here, they will kill me. I 

have to leave this place and go.” 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 
UNITED STATES V. BARAI 7

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:

First, the defendant obtained the labor or 

services of another person; 

Second, that the defendant did so through at 

least one of the following prohibited means: 

a. force, threats of force, physical 

restraint, or threats of physical restraint to 

that person; 

2 Because that evidence is not relevant to this opinion, we do not discuss 

it here.
8 UNITED STATES V. BARAI

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; and

Third, that the defendant acted knowingly.

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

DISCUSSION

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 

3 The government voluntarily dismissed count 3, which charged Barai

with benefitting from forced labor in violation of 18 U.S.C. § 1589(b), 

after the close of evidence and before the jury began deliberations.
UNITED STATES V. BARAI 9

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 legally significant. See

Almendarez-Torres v. United States, 523 U.S. 224, 239 

(1998) (noting that an element must be stated in an 

indictment, proven by the government to a jury, and proven 

beyond a reasonable doubt). Relevant here, “a jury in a 

federal criminal case cannot convict unless it unanimously 

finds that the Government has proved each element.” 

Richardson v. United States, 526 U.S. 813, 817 (1999). 

However, “a federal jury need not always decide 

unanimously which of several possible sets of underlying 

brute facts make up a particular element, say, which of 

several possible means the defendant used to commit an

element of the crime.” Id. Thus, the United States Supreme 

Court has drawn a distinction between the legal elements of 

a crime and the factual means by which a defendant may 

commit that crime. See Mathis v. United States, 579 U.S. 

500, 514–15 (2016) (affirming, in a categorical approach 

case, the elements-means distinction in the Court’s caselaw). 

In Rendon v. Holder, we recognized the well-established 

status of the means-elements distinction and concluded that 

it “parallels the need for juror agreement.” 764 F.3d 1077, 

1086 (9th Cir. 2014) (“[T]he Supreme Court regards 

elements as those circumstances on which the jury must 

unanimously agree, while it regards means as those 

circumstances on which the jury may disagree yet still 

convict.”).
10 UNITED STATES V. BARAI

Thus, the question in this case is: Are the listed 

alternatives in the forced labor statute elements or means? 

We hold that the listed alternatives of 18 U.S.C. § 1589(a) 

are factual means, rather than distinct legal elements. The 

district court therefore did not abuse its discretion when it 

denied the defendants’ proposed specific unanimity 

instruction.

We begin with the statute’s text. “When called on to 

interpret a statute, this Court generally seeks to discern and 

apply the ordinary meaning of its terms at the time of their 

adoption.” BP P.L.C. v. Mayor & City Council of Baltimore, 

141 S. Ct. 1532, 1537 (2021). The forced labor statute reads:

(a) Whoever knowingly provides or obtains 

the labor or services of a person by any one 

of, or by any combination of, the following 

means–

(1) by means of force, threats of force, 

physical restraint, or threats of physical 

restraint to that person or another person;

(2) by means of serious harm or threats 

of serious harm to that person or another 

person;

(3) by means of the abuse or threatened 

abuse of law or legal process; or

(4) by means of any 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,

shall be punished as provided under 

subsection (d).
UNITED STATES V. BARAI 11

18 U.S.C. § 1589(a) (emphasis added). 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)—once before referring to each of the four 

alternatives and once when describing that a person obtains 

forced labor by “any one of, or by any combination of” such 

means.

In addition to the plain language, the Supreme Court has 

identified certain aspects of a statute’s structure that inform 

whether a statute describes means or elements. See Mathis, 

579 U.S. at 518. If statutory alternatives carry different 

punishments or if the statute identifies which alternatives 

must be charged, then the alternatives must be elements. Id. 

Accordingly, in United States v. Mickey, we held that the sex 

trafficking statute lists alternative factual means rather than 

legal elements in part because the alternatives do not carry 

different punishments and the statute does not identify each 

alternative as an element of the crime. 897 F.3d 1173, 1181–

82 (9th Cir. 2018). Similarly here, the forced labor statute’s 

alternatives do not carry different punishments and the 

statute does not identify each alternative as an element of the 

crime. See 18 U.S.C. § 1589(d).

Moreover, the sex trafficking statute in Mickey uses 

substantially similar language for its alternatives as the 

forced labor statute here. The sex trafficking statute in 

Mickey prohibits sex trafficking “by means of force, threats 

of force, fraud, or coercion described in subsection (e)(2), or 

by any combination of such means.” 18 U.S.C. 

§ 1591(b)(1). “Coercion” includes: 
12 UNITED STATES V. BARAI

(A) threats of serious harm to or physical 

restraint against any person;

(B) any scheme, plan, or pattern intended to 

cause a person to believe that failure to 

perform an act would result in serious harm 

to or physical restraint against any person; or

(C) the abuse or threatened abuse of law or 

the legal process.”

18 U.S.C. § 1591(e)(2). This language is nearly identical to 

the language used in the forced labor statute. Both statutes 

prohibit “force,” “threats of force,” “threats of serious 

harm,” “threats of physical restraint,” “any scheme, plan, or 

pattern intended to cause a person to believe that [failure to 

provide forced labor or perform a commercial sex act] would 

result in serious harm to or physical restraint against any 

person,” and “the abuse or threatened abuse of law or legal 

process.” Compare 18 U.S.C. § 1589(a), with 18 U.S.C. 

§ 1591(b)(1), (e)(2). “We . . . avoid interpretations that 

would ‘attribute different meanings to the same phrase.’” 

Cochise Consultancy, Inc. v. United States ex rel. Hunt, 139 

S. Ct. 1507, 1512 (2019) (quoting Reno v. Bossier Par. Sch. 

Bd., 528 U.S. 320, 329 (2000)). Because in Mickey we found 

nearly identical language to be means rather than elements, 

we read the forced labor statute in the same way.

This is especially true because the sex trafficking statute 

is part of the broader context for the forced labor statute. 

Indeed, both statutes were added to Title 18 at the same time 

through the Trafficking Victims Protection Act of 2000, and 

for the same general purpose—to combat the modern-day 

strategies by which traffickers exercise power over their 

victims. See Pub. L. No. 106-386, § 102(a), (b)(13), 114 

Stat. 1464, 1464 (2000). “When statutes ‘were enacted at 
UNITED STATES V. BARAI 13

the same time and form part of the same Act, the duty to 

harmonize them is particularly acute.’” United States v. 

Gallenardo, 579 F.3d 1076, 1083 (9th Cir. 2009) (quoting 

US W. Commc’ns, Inc. v. Hamilton, 224 F.3d 1049, 1053 

(9th Cir. 2000), as amended on reh’g (Sept. 13, 2000)); see 

also Erlenbaugh v. United States, 409 U.S. 239, 243 (1972) 

(“[A] legislative body generally uses a particular word with 

a consistent meaning in a given context.”). Thus, the plain 

text of the forced labor statute, the context in which the 

language is used, and the broader context of the statute as a 

whole counsel toward a finding that the forced labor statute’s 

alternatives are factual means, rather than legal elements. 

See United States v. Havelock, 664 F.3d 1284, 1289 (9th Cir. 

2012) (en banc) (“Statutory interpretation focuses on ‘the 

language itself, the specific context in which the language is 

used, and the broader context of the statute as a whole.’” 

(quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 

(1997))). 

We must also consider whether construing the listed 

alternatives as means “aggravates the dangers of unfairness.” 

Richardson, 526 U.S. at 819. In Richardson, the Supreme 

Court looked to the breadth and divergence of listed 

alternatives when considering whether a statute lists 

alternative factual means or legal elements. The Court 

concluded that individual “violations” are not means for 

purposes of 21 U.S.C. § 848(c)’s “series of violations” 

language because the statute’s “breadth aggravates the 

dangers of unfairness.” Id. The Court noted that 

“violations” covered approximately ninety numbered 

sections of drug crimes, which ranged from “removing drug 

labels” to “endangering human life while manufacturing a 

controlled substance in violation of the drug laws.” Id. By 

comparison, the forced labor statute’s set of alternatives is 
14 UNITED STATES V. BARAI

far narrower, and we do not find that the breadth or 

divergence of these alternatives is so significant that they 

might aggravate any potential danger of unfairness to 

defendants should the alternatives be treated as factual 

means. Each of the paragraphs describes a type of coercion, 

and each alternative is used to effectuate the same purpose: 

the acquisition of forced labor. As noted above, we have 

already held that a substantially similar list describes 

alternative means, rather than elements. Therefore, we 

conclude that the listed alternatives in the forced labor 

statute are simply different means by which a person may 

commit the same crime rather than “multiple, alternative 

elements of functionally separate crimes.”4 Rendon, 764 

F.3d at 1085.

Kartan argues that the forced labor statute’s paragraphs

must be elements because certain alternatives incorporate 

additional scienter requirements. His argument is based on 

the conclusions by our court and the Seventh Circuit that 

“scheme . . . intended to cause a person to believe” and “in 

order to exert pressure” incorporate scienter into the 

alternatives at § 1589(a)(3) and (a)(4). See United States v. 

Calimlim, 538 F.3d 706, 711 (7th Cir. 2008) (holding that 

§ 1589(a)(4) contains a “second scienter requirement” 

4 This conclusion is consistent with how we and the Fifth Circuit have 

treated the forced labor statute’s paragraphs. See Martinez-Rodriguez v. 

Giles, 31 F.4th 1139, 1150 (9th Cir. 2022) (“Because Plaintiffs pleaded 

only a single forced-labor cause of action in their operative complaint, 

the district court’s dismissal of that claim was erroneous if Plaintiffs 

presented sufficient evidence to establish that Defendants engaged in any 

one of these three means with the requisite mens rea.” (emphasis 

added)); United States v. Toure, 965 F.3d 393, 400 (5th Cir. 2020) 

(treating the prohibited means listed in § 1589(a) as a single element of 

a forced labor offense).
UNITED STATES V. BARAI 15

because it requires a “scheme . . . intended to cause a person 

to believe . . .”); see also Martinez-Rodriguez, 31 F.4th at 

1157 (noting that § 1589(a)(3) “already incorporate[s] an 

element of scienter inasmuch as ‘abuse . . . of law or legal 

process’ requires a showing that” the defendant did so “in 

order to exert pressure” on the victims).

We are not persuaded. We acknowledge that mens rea 

is an element of a crime, rather than a means. See Elonis v. 

United States, 575 U.S. 723, 734 (2015) (“[T]he ‘general 

rule’ is that a guilty mind is a ‘necessary element in the 

indictment and proof of every crime.’” (quoting United 

States v. Balint, 258 U.S. 250, 251 (1922))). In this case, the 

forced labor statute expressly defines the mens rea element: 

“knowingly.” 18 U.S.C. § 1589(a). By contrast, we have 

previously identified the incorporated scienter in the forced 

labor statute to be part of the actus reus element of the 

offense. See Martinez-Rodriguez, 31 F.4th at 1150, 1157 

(noting that “the actus reus . . . incorporate[s] an element of 

scienter”). “[T]he jury need not agree as to mere means of 

satisfying the actus reus element of an offense.” Schad v. 

Arizona, 501 U.S. 624, 632 (1991) (plurality opinion). Thus, 

because the incorporated scienter is part of the actus reus of 

a forced labor offense, the fact that some listed alternatives 

incorporate scienter does not undermine our conclusion that 

the alternatives are means.

Furthermore, Kartan’s interpretation would be at odds 

with fundamental rules of statutory interpretation because it 

would require us to read the forced labor statute and the sex 

trafficking statute inconsistently. See Cochise Consultancy, 

139 S. Ct. at 1512. The phrases that integrate a secondary 

scienter requirement into certain alternatives of the forced 

labor statute (i.e. “intended to cause a person to believe” and 

“in order to exert pressure”) are also used in the sex 
16 UNITED STATES V. BARAI

trafficking statute. Compare 18 U.S.C. § 1589(a)(4), (c)(1), 

with 18 U.S.C. § 1591(e)(1), (e)(2)(B). If we were to 

conclude that these phrases required us to hold that the 

forced labor statute’s alternatives are legal elements, then 

our holding would be directly at odds with Mickey. See 897 

F.3d at 1181. We decline to read the two statutes, which 

were enacted at the same time, as part of the same Act, and 

with substantially similar language, as conflicting. See 

Gallenardo, 579 F.3d at 1083. Thus, the jury did not need 

to be unanimous on the means by which Barai and Kartan 

obtained forced labor.

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.

AFFIRMED.