No Reversible Error from Unexplained “Associate Search” Reference: Second Circuit Affirms Under Harmless and Plain Error Frameworks in United States v. Morrison (Summary Order)

Introduction

This commentary examines the Second Circuit’s October 6, 2025 Summary Order in United States v. Morrison, No. 24-413, affirming the conviction and sentence of defendant-appellant Lafayette Morrison for his role as an “inside man” in a robbery at the Aqueduct Racetrack in Queens, New York. The panel—Judges Raggi, Wesley, and Pérez—rejected Morrison’s central appellate claim that the district court erred in allowing testimony that included two passing references to an “associate search,” which he argued risked suggesting a prior arrest or propensity for criminality, and that the court should at least have issued a limiting instruction.

The decision clarifies two practical points of recurring importance in federal criminal trials:

Fleeting and unexplained references to investigative techniques such as an “associate search,” without more, do not reasonably imply a defendant’s prior arrest or criminal propensity and therefore are not necessarily unfairly prejudicial.
Where a defendant objects to testimony but does not move to strike or request a limiting instruction, any challenge to the absence of a limiting instruction is reviewed for plain error; in any event, harmless error analysis will often dispose of claims where the evidence is minimal, unelaborated, and unmentioned in summation, and where the government’s case is strong and corroborated.

Although designated a Summary Order without precedential effect under Federal Rule of Appellate Procedure 32.1 and Second Circuit Local Rule 32.1.1, the decision offers a careful application of standards governing evidentiary admission, harmless error, and plain error review.

Summary of the Opinion

The court affirmed the judgment of the Eastern District of New York (Donnelly, J.), upholding Morrison’s convictions for:

Conspiracy to commit Hobbs Act robbery and substantive Hobbs Act robbery, 18 U.S.C. § 1951(a);
Possessing and brandishing a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A)(i)-(ii); and
Obstruction of justice, 18 U.S.C. § 1512(c)(2).

Before trial, the district court had ruled inadmissible evidence concerning a more-than-20-year-old arrest involving Morrison and a co-conspirator on undue prejudice grounds. At trial, a law enforcement witness twice stated that he conducted an “associate search” for Morrison’s name; each time, the testimony was immediately cut off by objection or court intervention. The witness never explained what an “associate search” is, never described results, and never mentioned any prior arrest. Morrison argued that the jury could nevertheless infer prior criminality.

The Second Circuit held there was no error in permitting the brief, unexplained references. Even assuming error, any error was harmless given the strength of the government’s case, the absence of reliance on the references in summation, the minimal importance of the references, and their overlap with a stipulation that Morrison had a pre-existing relationship with a co-conspirator. As to the lack of a limiting instruction, because Morrison did not request one, review was for plain error. For the same reasons supporting harmlessness, there was no plain error warranting reversal.

In a footnote, the court noted that Morrison’s challenge to his § 924(c) conviction—arguing that completed Hobbs Act robbery is not a “crime of violence”—is foreclosed by binding Second Circuit precedent and preserved only for potential future changes in law. See United States v. McCoy, 58 F.4th 72 (2d Cir. 2023), cert. denied, 144 S. Ct. 115 (2023); United States v. Barrett, 102 F.4th 60 (2d Cir. 2024).

Detailed Analysis

Procedural Posture and Standards of Review

The court reviewed the district court’s evidentiary rulings for abuse of discretion, consistent with United States v. Barret, 848 F.3d 524, 531 (2d Cir. 2017). Where an evidentiary error is preserved, the appellate court applies harmless error review, asking whether it can conclude with “fair assurance” that the evidence did not substantially influence the jury’s verdict. United States v. Zhong, 26 F.4th 536, 558 (2d Cir. 2022) (quoting Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir. 2010)). Where a party fails to request a limiting instruction, review of the absence of such an instruction is for plain error. United States v. Elfgeeh, 515 F.3d 100, 126 (2d Cir. 2008).

Here:

Admission of the testimony: Preserved via objection; reviewed for harmless error if error.
Failure to strike or to give a limiting instruction: Not preserved; reviewed for plain error. The court emphasized defendant’s concession that plain error governs the limiting-instruction point.

Pretrial Ruling and Trial Events

The district court excluded, under a prejudice analysis, evidence of a decades-old arrest involving Morrison and a co-conspirator. During trial, a law enforcement witness briefly stated he conducted an “associate search” for Morrison’s name. Each time, the testimony was cut off—either upon defense objection or by the court’s intervention. Crucially, the witness never explained the term, never discussed any results, and never mentioned prior arrests or criminal propensity. The references were not repeated in the government’s closing argument.

Why the Passing “Associate Search” Reference Was Not Reversible Error

1. No abuse of discretion in permitting the references

The panel rejected the assertion that the district judge allowed testimony about the excluded arrest. On the trial record, the witness’s unexplained use of “associate search” did not reveal the existence or results of any database inquiry, much less a prior arrest. Without a specific link to prior bad acts, propensity, or criminal history, the testimony had no reasonably prejudicial import. The court therefore found no error.

2. Harmless error analysis (assuming arguendo the references were improperly admitted)

Applying the four-factor harmless error test from United States v. Al-Moayad, 545 F.3d 139, 164 (2d Cir. 2008) (quoting United States v. Kaplan, 490 F.3d 110, 123 (2d Cir. 2007)), the court held any error would be harmless:

Overall strength of the government’s case: Strong. Although the government relied on a cooperating witness (whose credibility the defense attacked), that testimony was corroborated by “reams” of circumstantial evidence, including cell phone records and other witnesses. United States v. Garcia, 413 F.3d 201, 218 (2d Cir. 2005) emphasizes that challenges to a cooperator’s credibility are “relatively weak” when there is substantial corroboration.
Prosecutor’s conduct regarding the disputed testimony: The government did not mention the “associate search” in closing argument, supporting a finding that it carried no substantial weight.
Importance of the evidence: Minimal. Without explanation, the term “associate search” lacked probative meaning and did not meaningfully advance the government’s case.
Cumulative nature: Largely cumulative. Morrison stipulated that he had a preexisting relationship with a co-conspirator, so any implication that he had an “associate” was already properly before the jury.

These considerations provided the “fair assurance” that the outcome was not substantially influenced by the passing references. Zhong, 26 F.4th at 558.

3. Plain error review of the absence of a limiting instruction

Because Morrison did not request a limiting instruction or move to strike, his challenge to the lack of a limiting instruction was subject to plain error review. The panel noted that the burden is on the appellant under this standard. See United States v. Moore, 975 F.3d 84, 93 n.37 (2d Cir. 2020). Given the short, unexplained nature of the references, the strength of the government’s proof, the lack of reliance in summation, and the cumulative character relative to the stipulation, there was no plain error warranting reversal. The court further cited United States v. Gershman, 31 F.4th 80, 101 n.11 (2d Cir. 2022) for the proposition that a finding of harmlessness may obviate the need to reach plain error analysis; in any event, both standards pointed to affirmance.

Precedents and Authorities Applied

United States v. Barret, 848 F.3d 524, 531 (2d Cir. 2017): Confirms the deferential abuse-of-discretion standard for evidentiary rulings. The panel framed its review through this lens, underscoring the district court’s “broad discretion.”
United States v. Zhong, 26 F.4th 536, 558 (2d Cir. 2022), quoting Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir. 2010): Supplies the “fair assurance” harmless error formulation—wrongly admitted evidence warrants reversal only if it substantially influenced the jury’s verdict.
United States v. Elfgeeh, 515 F.3d 100, 126 (2d Cir. 2008): Establishes plain error review for failures to give limiting instructions when no instruction was requested. This controlled the limiting-instruction issue in Morrison.
United States v. Al-Moayad, 545 F.3d 139, 164 (2d Cir. 2008) and United States v. Kaplan, 490 F.3d 110, 123 (2d Cir. 2007): Provide the Second Circuit’s four-factor harmless error test—strength of the case, prosecutor’s conduct, importance of the evidence, and cumulativeness.
United States v. Garcia, 413 F.3d 201, 218 (2d Cir. 2005): Holds that attacks on a cooperator’s credibility are weakened by substantial corroboration, which the government had here via cell phone records and other witnesses.
United States v. Moore, 975 F.3d 84, 93 n.37 (2d Cir. 2020): Notes the appellant’s burden under plain error review, relevant to the unrequested limiting instruction.
United States v. Gershman, 31 F.4th 80, 101 n.11 (2d Cir. 2022): Confirms that when an error is harmless, a court need not proceed to full plain error analysis.
United States v. McCoy, 58 F.4th 72, 74 (2d Cir. 2023), cert. denied, 144 S. Ct. 115 (2023), and United States v. Barrett, 102 F.4th 60, 82–83 (2d Cir. 2024): Control the separate § 924(c) issue Morrison preserved; under binding Second Circuit law, completed Hobbs Act robbery categorically qualifies as a crime of violence for § 924(c). The panel did not revisit that settled point.

Legal Reasoning and Doctrinal Themes

Three interrelated themes underpin the court’s reasoning:

Ambiguous references and prejudice: The law distinguishes between explicit propensity evidence and ambiguous or unexplained references to investigative steps. The latter, absent elaboration, typically lack probative or prejudicial punch. Here, the term “associate search” was never defined, never linked to past arrests, and never leveraged in summation. The panel would not pile inference upon inference to find undue prejudice where the record lacked substance.
Preservation matters: The court separated the admission of the testimony (reviewed for harmless error if erroneous) from the failure to give a limiting instruction (reviewed for plain error because no request was made). Effective preservation requires specific, contemporaneous requests to strike or instruct. When counsel objects to a question or answer but does not seek a limiting instruction, the appellate posture is less favorable.
Harmless error as a backstop: The Second Circuit’s four-factor test provides a structured way to calibrate the effect of potential evidentiary missteps. Weighty corroborated proof, prosecutorial restraint, the marginality of the disputed snippet, and overlap with stipulated facts will typically render any error harmless. The panel’s analysis illustrates that even arguable lapses will not warrant reversal when the record decisively supports guilt.

Impact and Practical Implications

Although nonprecedential, the order has practical resonance for trial practitioners and district courts:

Prosecutors and agents should avoid unexplained or suggestive jargon that could imply criminal history (e.g., “associate search,” “known to law enforcement”) unless necessary and appropriately contextualized. If such terms are unavoidable, the record should reflect their benign meaning or be cut off before confusion arises—as happened here.
Defense counsel should promptly object and, where appropriate, also move to strike and request a limiting instruction. Without a limiting-instruction request, review is for plain error, which is difficult to meet. Counsel must weigh the strategic risk of “highlighting” a fleeting reference against the risk of forfeiting a stronger appellate posture. This case demonstrates how failing to request an instruction can foreclose relief.
District judges may permissibly curtail potentially problematic testimony in real time without necessarily issuing a sua sponte limiting instruction, particularly where the reference is brief, unexplained, and unimportant to the case, and where a sua sponte instruction could draw undue attention to otherwise innocuous testimony.
The “cumulative evidence” factor is potent. If the defense stipulates to relevant background facts (such as a preexisting relationship among participants), it will be harder on appeal to argue that passing references to “associates” unduly prejudiced the jury.
On the § 924(c) front, the panel reiterates the Second Circuit’s settled position that completed Hobbs Act robbery is a “crime of violence.” Defendants may preserve the argument for potential future changes, but relief is unavailable in the Second Circuit absent Supreme Court or en banc intervention.

Complex Concepts Simplified

Abuse of discretion: A deferential appellate standard. The trial judge’s evidentiary calls stand unless they are arbitrary, irrational, or otherwise outside the bounds of reasonable judgment.
Harmless error: Even if the trial court erred, the conviction stands if the error did not materially influence the jury’s verdict. Courts examine the overall strength of the case, whether prosecutors emphasized the problematic evidence, the evidence’s relative importance, and whether it duplicated other admissible proof.
Plain error: A stringent standard for issues not properly preserved. The appellant must show (among other things) an obvious error affecting substantial rights and seriously impacting the fairness or integrity of the proceedings. Failing to request a limiting instruction usually triggers this standard for that issue.
Limiting instruction: A judge’s instruction telling jurors they may consider particular evidence for a specific, limited purpose (and not for propensity or other forbidden uses). It can mitigate potential prejudice. But requesting one is a strategic choice because it may also draw attention to the evidence.
Rule 403 unfair prejudice: Evidence may be excluded if its probative value is substantially outweighed by the risk of unfair prejudice. The district court conducted such a balancing pretrial in excluding the 20-year-old arrest evidence.
Rule 404(b) propensity concerns: Evidence of “other crimes, wrongs, or acts” cannot be used to prove character in order to show action in conformity. References insinuating prior arrests can implicate 404(b) concerns; here, the testimony never actually crossed that line.
“Cumulative” evidence: Evidence that adds little because the same point is proved by other admissible evidence (e.g., a stipulation). Cumulative evidence is less likely to be harmful.
Cooperating witness corroboration: Where a cooperator’s testimony is backed by independent evidence (e.g., cell-site records), appellate courts are less likely to view credibility challenges as undermining the verdict.
Summary Orders and citation: In the Second Circuit, Summary Orders have no precedential effect, but parties may cite them in accordance with FRAP 32.1 and Local Rule 32.1.1, and must provide copies to pro se parties.

Conclusion

United States v. Morrison provides a careful application of evidentiary and appellate review doctrines to a common trial scenario: a witness’s brief, unexplained reference to law enforcement investigative tools. The Second Circuit held there was no error in allowing the term “associate search” to be uttered twice in passing, especially given the trial court’s immediate interventions and the lack of any explanation or reference to prior arrests. Even assuming error, the court found it harmless by weighing the strength of the government’s corroborated proof, the prosecutor’s avoidance of the topic in summation, the trivial role of the testimony, and its overlap with a stipulation regarding Morrison’s prior relationship with a co-conspirator. As to the lack of a limiting instruction, plain error review applied, and the same considerations defeated reversal.

Beyond its immediate holding, the order underscores the importance of preservation: objections should be accompanied, where appropriate, by motions to strike and requests for limiting instructions. It also serves as a reminder that equivocal or unexplained investigative jargon, without more, does not necessarily infer a defendant’s criminal past. Finally, the court reaffirms the Second Circuit’s settled position that completed Hobbs Act robbery remains a qualifying “crime of violence” for § 924(c) purposes, a point preserved by Morrison but controlled by McCoy and Barrett.

While nonprecedential, the decision provides a useful roadmap for trial judges and advocates on managing, preserving, and reviewing fleeting references that might otherwise risk unfair prejudice—and shows how the intertwined doctrines of harmless and plain error operate to cabin reversible error to genuinely consequential evidentiary missteps.