United States v. Gupta

Amicus curiae brief of the National Association of Criminal Defense Lawyers and the New York State Association of Criminal Defense Lawyers in support of appellant on rehearing en banc.

Brief filed: 11/14/2011


United States v. Gupta

2nd Circuit Court of Appeals; Case No. 09-4738-cr


The Sixth Amendment guarantees a public trial, including jury selection. Presley v. Georgia, 130 S.Ct. 721 (2010). The panel below found that trial court’s exclusion of the defendant’s family was intentional and in violation of Presley but applied the Second Circuit’s “triviality” exception. The court, sitting en banc, should abolish the “triviality exception” to constitutional errors as impermissibly arbitrary, subjective, standardless and unworkable.

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Mark Fernich, New York, NY.