Waiver-by-Tactical Non-Objection to Attorney-Witness Testimony and Reliance on Curative Instructions in Securities-Fraud Trials (United States v. Larmore)

Introduction

United States v. Larmore (2d Cir. Feb. 20, 2026) is a nonprecedential summary order affirming a Southern District of New York securities-fraud conviction arising from an alleged fabricated tender offer used to manipulate WeWork, Inc. stock after the defendant accumulated substantial equity and options positions.

The appeal focused narrowly on evidentiary rulings: whether the district court (Engelmayer, J.) erred by allowing the Government to call two attorneys—James Siegel and Jeremy Piccini—who had communicated with Jonathan Moynahan Larmore in connection with the events charged, and by admitting certain statements and a text message from counsel that the defense claimed were unfairly prejudicial or improper legal-opinion testimony.

The Second Circuit’s core message is procedural but potent: where the defense makes (or declines) objections in a way that constitutes waiver—especially after an explicit invitation to object—appellate review may be unavailable, and even forfeited objections face the steep plain-error standard, with curative instructions typically deemed adequate.

Summary of the Opinion

  • The Court affirmed Larmore’s convictions and sentence (60 months’ imprisonment plus supervised release).
  • It held that Larmore waived (and otherwise forfeited) his challenges to the admission of testimony and evidence from Siegel and Piccini.
  • Even putting waiver/forfeiture aside, the Court found no reversible error: the contested attorney statements were properly tied to Larmore’s state of mind, the district court issued limiting/curative instructions, and the record contained overwhelming evidence of guilt.

Analysis

Precedents Cited

The order is built around a familiar appellate framework—standards of review, waiver/forfeiture, and the effectiveness of curative instructions—drawing on the following authorities:

1) Standards of review for evidentiary rulings

  • United States v. Litvak, 808 F.3d 160 (2d Cir. 2015): cited for the baseline rule that evidentiary rulings are generally reviewed for abuse of discretion. Larmore anchors its analysis here before shifting to stricter review because objections were not preserved.
  • United States v. Gaind, 31 F.3d 73 (2d Cir. 1994): cited for the rule that when an objection is not raised at trial, review is for plain error.

2) Waiver versus forfeiture

  • United States v. Batista, 684 F.3d 333 (2d Cir. 2012): cited for the principle that if an objection is waived, the appellate court will not consider it.
  • United States v. Olano, 507 U.S. 725 (1993): supplies the key distinction that a mere failure to object is not automatically waiver; waiver requires an intentional relinquishment, while forfeiture is a failure to timely assert a right.
  • United States v. Yu-Leung, 51 F.3d 1116 (2d Cir. 1995): used to identify a common waiver scenario—an intentional tactical decision not to object, or declining an invitation to object.
  • United States v. Coonan, 938 F.2d 1553 (2d Cir. 1991): invoked for the idea that a defendant cannot “evade the consequences of an unsuccessful tactical decision” by objecting only after losing.

3) Limiting/curative instructions and presumed jury compliance

  • United States v. Ferguson, 676 F.3d 260 (2d Cir. 2011): cited for the proposition that juries are presumed to follow instructions.
  • United States v. Graham, 51 F.4th 67 (2d Cir. 2022): emphasizes that this presumption is “strong.”
  • United States v. Elfgeeh, 515 F.3d 100 (2d Cir. 2008): provides the standard for when improper evidence may overcome the presumption: only where there is an “overwhelming probability” the jury could not follow the instruction and a “strong likelihood” the impact was devastating.

4) Mistrials and trial-judge discretion

  • Renico v. Lett, 559 U.S. 766 (2010): cited for the high discretion afforded trial judges on whether to declare a mistrial, and that it is a measure reserved for urgent circumstances and “very plain and obvious causes.”

5) Plain error and prejudice/miscarriage of justice

  • United States v. Villafuerte, 502 F.3d 204 (2d Cir. 2007): applied to stress that plain-error relief requires more than showing a potential evidentiary mistake—there must be a realistic possibility of a different outcome or a miscarriage of justice.
  • United States v. Frady, 456 U.S. 152 (1982): quoted (via Villafuerte) regarding the “miscarriage of justice” benchmark for unpreserved error.

Legal Reasoning

A. Calling the attorneys as witnesses: waiver by affirmative non-objection

The defense argued on appeal for a “presumptive exclusion of attorney testimony.” The panel rejected the claim primarily on waiver grounds:

  • The Government notified the court pretrial of its intent to call the attorneys, and the defense did not respond.
  • At a pretrial conference, the district court explicitly noted the lack of a response and invited comment. Defense counsel said, “We have no problem.”

Under United States v. Yu-Leung and United States v. Coonan, that sort of explicit acceptance—especially after a direct invitation to object—constitutes intentional relinquishment. The court also noted a doctrinal point: Larmore cited no Second Circuit precedent supporting any categorical rule presumptively excluding attorney testimony, and “there is none.”

B. Siegel’s statement “I don’t think you can do that”: admitted to show state of mind with a limiting instruction

The defense challenged the admission of Siegel’s advice as an improper legal opinion. The panel treated the evidence as relevant to mens rea: what Larmore was told bears on what he knew and intended. The district court also gave (and the defense accepted) an instruction that the jury could consider the evidence for state of mind but must take the law from the court “and the Court alone.”

Citing United States v. Ferguson, the panel leaned on the presumption that jurors follow such instructions and found no abuse of discretion (and certainly no plain error).

C. “Classic stock manipulation and securities fraud”: objection sustained, answer struck, no mistrial requested

When Siegel went further—characterizing the plan as “classic stock manipulation and securities fraud”—the district court immediately struck the answer and instructed the jury to disregard it. The defense did not move for a mistrial. After additional discussion outside the jury’s presence, the court offered to provide further instructions; defense counsel declined and agreed the problem had been cured.

On appeal, the argument effectively became that the court should have declared a mistrial sua sponte. The panel rejected that, pointing to:

  • the prompt curative action (striking the testimony);
  • the limiting instruction that the court supplies the law;
  • the strong presumption of juror compliance under Ferguson and United States v. Graham;
  • the stringent standard for overcoming that presumption under United States v. Elfgeeh;
  • and the broad discretion afforded trial judges on mistrials under Renico v. Lett.

D. The “funds locked down” text message: unobjected-to evidence reviewed (at most) for plain error

The defense also challenged a text from Siegel to Larmore stating, “I think you will need to have the funds locked down before the [tender offer],” plus related testimony. Because there was no trial objection, the panel treated the issue as forfeited and reviewed for plain error. It found none, emphasizing the limiting instruction and “overwhelming evidence” of guilt, and concluding there was no reasonable prospect of a different outcome— consistent with United States v. Villafuerte (quoting United States v. Frady).

Impact

Although labeled nonprecedential, United States v. Larmore is a clear illustration of several practical rules likely to shape how future litigants in the Second Circuit try (and preserve) evidentiary issues involving attorney-witnesses:

  • Preservation is decisive: explicit acceptance of contested evidence—particularly after a judge invites objections—will likely be treated as waiver, not mere forfeiture, shutting down appellate review.
  • No categorical bar to attorney testimony: absent privilege or other exclusionary grounds, the panel rejected the notion that attorney testimony is “presumptively” excluded in this Circuit.
  • State-of-mind use and limiting instructions: attorney advice can be admitted to illuminate the defendant’s knowledge/intent, with the risk of “legal opinion” mitigated by instructions that only the court states the law.
  • Curative instructions often suffice: even sharper legal-characterization testimony (“classic … securities fraud”) may be cured by striking the testimony and instructing the jury, absent the exceptional circumstances described in United States v. Elfgeeh.

Complex Concepts Simplified

  • Waiver vs. forfeiture:
    • Forfeiture is forgetting or failing to object in time; the appellate court may still review for plain error.
    • Waiver is an intentional decision to give up an objection (e.g., “We have no problem”); the appellate court generally will not review it at all.
  • Plain error: a demanding appellate standard applied to unpreserved issues; the defendant must show more than a possible mistake—typically that the error was clear and affected the outcome in a way that threatens fairness or produces a miscarriage of justice.
  • Percipient witness vs. expert witness: a percipient (fact) witness testifies about what they saw/heard/did (e.g., the content of conversations). An expert offers specialized opinions to help the jury understand technical matters. Larmore treated the attorneys as “functionally” experts, but the court accepted their testimony as fact/state-of-mind evidence policed by limiting instructions.
  • Limiting/curative instruction: a direction from the judge telling the jury how it may (or may not) use evidence (e.g., consider it for state of mind, not as “the law”). Appellate courts presume jurors comply, absent extraordinary circumstances.
  • Mistrial: an aborting of the trial due to fundamental unfairness that cannot be cured; courts treat it as a last resort, leaving substantial discretion to the trial judge.

Conclusion

United States v. Larmore affirms securities-fraud convictions while underscoring that appellate outcomes often turn less on abstract evidentiary theories than on trial-level preservation. By treating the defense’s pretrial and in-trial choices as waiver/forfeiture, and by crediting the district court’s limiting and curative instructions, the Second Circuit signaled that attorney-witness testimony—when relevant to state of mind and properly bounded—will not be easily undone on appeal, particularly under plain-error review and in the face of overwhelming evidence.