The following excerpt is from United States v. Mickens, 20-258 L, 20-462, 20-630 (2nd Cir. 2021):
Defendants face "a heavy burden" when seeking a new trial on the basis of prosecutorial misconduct. United States v. Locascio, 6 F.3d 924, 945 (2d Cir. 1993). "[T]he misconduct alleged must be so severe and significant as to result in the denial of their right to a fair trial." Id. In evaluating a claim of prosecutorial misconduct, courts consider: "(1) the severity of the alleged misconduct; (2) the curative measures taken; and (3) the likelihood of conviction absent any misconduct." Id. at 945-46. We review the district court's decisions regarding prosecutorial misconduct claims for abuse of discretion. See United States v. Aquart, 912 F.3d 1, 27 (2d Cir. 2018).
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