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• United States ex rel. James C. Haynes v. McKENDRICK, 481 F.2d 152 (2d Cir. 1973)
  …4, 1176 (2d Cir.), cert. denied, 409 U.S. 842, 93 S.Ct. 41, 34 L.Ed.2d 82 (1972); see also Buchalter v. New York, supra, 319 U.S. at 431, 63 S.Ct. 1129. But see United States ex rel. Castillo v. Fay, 350 F. 2d 400, 401 (2d Cir. 1965), cert. denied, 382 U.S. 1019, 86 S.Ct. 637, [*161] 15 L.Ed.2d 533 (1966). But here there was no provocation, and, while the prosecutor could legitimately reply to the identification argument by the defense, his reply went beyond the bounds of propriety, passing those of due pro…

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• United States ex rel. Danton S. Miller v. Follette, 397 F.2d 363 (2d Cir. 1968)
  …was done. Under those circumstances, to regard the prosecutor’s restrained remark as an error of constitutional proportions would glorify technicality. Cf. e.g., United States ex rel. Castillo v. Fay, 350 F. 2d 400, 401 (2d Cir. 1965), cert. denied, 382 U.S. 1019, 86 S.Ct. 637, 15 L.Ed.2d 533 (1966). And we agree with the district judge that if error there was in this one comment in an eminently fair trial which lasted almost a week, it was “harmless.” 6 The remaining argument on appeal requires little disc…
• Malley v. Manson, 547 F.2d 25 (2d Cir. 1976)
  …8, 40 L.Ed.2d 43 (1974). Simply stated, the due process test is whether the prosecutor’s remarks were so prejudicial as to deprive the defendant of a fair trial, United States ex rel. Castillo v. Fay, 350 F. 2d 400, 401 (2d Cir. 1965), cert. denied, 382 U.S. 1019, 86 S.Ct. 637, 15 L.Ed.2d 533 (1966). The absence of contemporaneous objections or requests for cautionary instructions are factors to be taken into consideration. Here, the general comments about the drug problem did not exceed the prosecutor’s pr…