No Presumption of Venire Taint from Stray Prospective Juror Comments: A Commentary on United States v. Htut (2d Cir. 2025)

I. Introduction

This commentary analyzes the Second Circuit’s summary order in United States v. Htut, No. 24‑661 (2d Cir. Dec. 11, 2025), affirming the conviction of Phyo Hein Htut for conspiracy to assault a foreign official in violation of 18 U.S.C. § 371. The alleged target was Myanmar’s Permanent Representative to the United Nations, and the plot was linked to supporters of the military junta that overthrew Myanmar’s elected government in February 2021.

The appeal does not challenge the sufficiency of the evidence or the substantive law of conspiracy. Instead, it is a focused attack on the integrity of jury selection. Htut argues that the entire jury pool—the venire—was “tainted” by comments made by three prospective jurors during voir dire, requiring a new trial under the Sixth Amendment right to an impartial jury.

The Second Circuit rejects that argument, emphasizing two core propositions:

Trial judges have broad discretion in conducting voir dire and empaneling juries.
The Constitution protects the right to an impartial jury, not to a jury ignorant of all relevant facts, publicity, or controversy.

Although issued as a non‑precedential summary order, the decision is citable under Federal Rule of Appellate Procedure 32.1 and Second Circuit Local Rule 32.1.1, and it offers a clear and practical restatement of the demanding standard defendants must meet to show that voir dire has been fatally compromised by statements from prospective jurors who do not ultimately serve.

II. Summary of the Opinion

After a jury trial in the Southern District of New York (Judge Nelson S. Román), Htut was convicted on one count of conspiracy to assault a foreign official and sentenced to 30 months’ imprisonment. On appeal, he claimed that voir dire was constitutionally defective because three prospective jurors made comments in front of the venire that, in his view, biased the entire pool:

A juror said he had seen press coverage that Htut’s co‑defendants had pleaded guilty.
A juror said he had protested against the Myanmar government and felt he could not be impartial, in part because he might be “overly sympathetic to the Defendant.”
A juror said he had a friend serving as an ambassador in Central Asia who had faced “serious security threats.”

None of these three individuals ultimately sat on the jury. Htut nonetheless argued that their statements fatally “tainted” the entire venire. The Second Circuit disagreed and affirmed:

It reiterated that jury selection is entrusted to the “sound discretion” of the trial judge, reviewable only for abuse of discretion.
To show a constitutional violation arising from voir dire, a defendant must show that his conviction was rendered “at the hands of a biased jury,” i.e., actual bias among the jurors who decided the case.
The isolated comments did not establish such bias, especially since:
- Public knowledge of co‑defendants’ guilty pleas does not ordinarily create a presumption of prejudice.
- Jurors are not required to be ignorant of controversies surrounding a foreign government or of the fact that ambassadors face security risks.
- The district court took care to ensure impartiality through instructions and questioning and excused the jurors who expressed potential bias.

Concluding that the district court acted well within its “ample discretion,” the court affirmed the judgment and rejected all remaining arguments as meritless.

III. Legal and Factual Background

A. The Underlying Case

The defendant, Phyo Hein Htut, was tried in the Southern District of New York for conspiring to assault Myanmar’s Permanent Representative to the United Nations. The government’s theory was that he joined a plot, orchestrated by supporters of Myanmar’s military junta, to harm the Ambassador, who represented the prior democratically elected government.

Crucially, the opinion notes that Htut’s trial defense did not deny the existence of a conspiracy or the guilt of his co‑defendants. Instead, his theory was that:

There was a conspiracy to harm the Ambassador;
His co‑conspirators were guilty of joining that conspiracy; but
Htut himself did not intend to join the conspiracy and therefore should not be held criminally responsible.

That defense posture becomes important when assessing the alleged prejudice from a juror’s remark about co‑defendants’ guilty pleas.

B. The Voir Dire Objections

During jury selection, three prospective jurors made comments in open court that became the centerpiece of the appeal:

Prospective Juror No. 24 said he had seen press coverage stating that Htut’s co‑defendants had pleaded guilty.
Prospective Juror No. 53 stated that he had “protested against the government” of Myanmar and that this made him unable to be impartial, in part because he feared he might be “overly sympathetic to the Defendant.”
Prospective Juror No. 49 said he had a friend serving as an ambassador in Central Asia who had faced serious security threats, implying that ambassadorships in parts of Asia could be dangerous.

The district court excused these three jurors and continued jury selection. On appeal, Htut argued that, despite their removal, their comments irreversibly “tainted” the remaining venire because:

The panel now knew that co‑defendants had pleaded guilty;
The panel heard that Myanmar’s government was controversial and the subject of protests;
The panel was exposed to the idea that ambassadors faced serious security threats.

He contended that, together, these statements injected “extraneous evidence” and biases into the jury pool that could not be cured by instructions or follow‑up questioning. The government countered that the statements were limited, the jurors in question did not sit, and the district court took adequate steps to ensure impartiality.

IV. Precedents Cited and Their Influence

A. United States v. Morales, 185 F.3d 74 (2d Cir. 1999)

The panel opens with Morales to reaffirm the key procedural point:

“The process of empaneling a jury is firmly entrusted to the sound discretion of the trial judge and will not be disturbed absent an abuse of this discretion.”

Morales underscores that the conduct of voir dire—what questions to ask, how to respond to unexpected remarks, whether to strike the whole venire or proceed with curative measures—is largely a matter for the trial judge. Appellate courts intervene only when:

The judge applies an incorrect legal standard;
Makes clearly erroneous factual determinations; or
Chooses an option outside the range of permissible decisions.

Htut relies on Morales to set the deferential posture: the Second Circuit is not re‑running voir dire; it is asking whether the district court’s approach was reasonable and lawful.

B. United States v. Nieves, 58 F.4th 623 (2d Cir. 2023)

Nieves is cited for two related ideas:

Why appellate courts give trial judges substantial latitude in jury selection; and
The contours of the abuse‑of‑discretion standard in this context.

Quoting Nieves (itself quoting Rosales‑Lopez), the panel notes that trial judges are:

“best positioned to ‘reach conclusions as to [the] impartiality and credibility [of jurors] by relying on [their] own evaluations of demeanor evidence and of responses to questions.’”

Nieves further states that a court abuses its discretion when its decision:

“incorporates an error of law,”
“rests on a clearly erroneous factual finding,” or
“cannot be located within the range of permissible decisions.”

In Htut, the Second Circuit uses Nieves as a template: nothing about the district court’s response to the challenged comments reflects a legal error, a clearly wrong factual assumption, or an unreasonable choice among available remedies.

C. Rosales‑Lopez v. United States, 451 U.S. 182 (1981)

Rosales‑Lopez is the foundational Supreme Court case on the role of voir dire. It is cited here for two propositions:

Voir dire plays a “critical function” in protecting the Sixth Amendment right to an impartial jury.
At the same time, decisions about the scope and content of voir dire are largely committed to the trial judge’s discretion.

Htut invokes Rosales‑Lopez both to underscore the importance of voir dire and to justify the deference afforded to district courts in administering it.

D. United States v. Perez, 387 F.3d 201 (2d Cir. 2004)

Perez provides the governing standard for constitutional challenges based on voir dire errors:

“To succeed on a constitutional challenge based on an error during voir dire, [the] appellant must show that his conviction was at the hands of a biased jury.”

This is a demanding requirement. It is not enough to show:

Some irregularity during voir dire; or
That certain prospective jurors expressed bias;

A defendant must ultimately connect the alleged error to actual bias among the empaneled jurors who rendered the verdict.

In Htut, this is fatal to the defense. The three prospective jurors who made the challenged comments were excused. No showing was made that any juror who ultimately sat was biased, nor that the comments created an environment where an impartial jury could not be selected.

E. Irvin v. Dowd, 366 U.S. 717 (1961)

Irvin is the seminal pretrial publicity case. It is invoked in Htut for two critical propositions:

Jurors need not be totally ignorant of the case:
“[I]t is not required . . . that the jurors be totally ignorant of the facts and issues involved.”
Even preconceived notions do not, by themselves, rebut the presumption of impartiality if the juror can lay them aside:
Even “preconceived notion[s] as to the guilt or innocence of an accused” will not, on their own, “rebut the presumption of a prospective juror’s impartiality,” so long as that juror can “lay aside his impression[s] or opinion[s] and render a verdict based on the evidence presented in court.”

Irvin also sets out the requirement that, absent certain exceptional circumstances, a defendant must show “the actual existence” of prejudice in the minds of jurors.

In Htut, Irvin supports the rejection of any automatic presumption of prejudice based on:

A juror’s exposure to media about co‑defendants’ guilty pleas;
Knowledge of political controversy in Myanmar; or
Awareness that ambassadors may face security threats.

Without evidence that the empaneled jurors could not set aside any such information and decide based solely on the evidence, the Sixth Amendment claim fails.

F. Skilling v. United States, 561 U.S. 358 (2010)

Skilling, arising from the Enron scandal, refines the law of pretrial publicity and juror bias. The Second Circuit quotes it for two connected points:

“Publicity about a codefendant’s guilty plea . . . does not ordinarily . . . warrant an automatic presumption of prejudice.”
“Juror impartiality . . . does not require ignorance” of current events.

Skilling is used in Htut in two ways:

To reject Htut’s argument that the juror’s comment about co‑defendants’ guilty pleas triggered a presumption of prejudice. The court holds that such publicity is not, by itself, enough. Actual bias must be shown.
To underscore that jurors may know about political controversies—including unrest in Myanmar—without being constitutionally disqualified.

G. Knapp v. Leonardo, 46 F.3d 170 (2d Cir. 1995)

Knapp contributes the memorable formulation:

“[T]he Constitution does not require ignorant jurors, only impartial ones.”

The panel uses Knapp specifically in response to the argument that knowledge of ambassadorial security risks in Central Asia tainted the panel. The court reasons that:

Awareness that ambassadors face threats is a form of background knowledge, not an indicator of bias;
Such knowledge does not prevent jurors from judging the particular facts of a conspiracy case fairly.

Knapp thus neatly encapsulates the court’s overall stance: constitutional scrutiny focuses on impartiality, not on erasing jurors’ real‑world understanding.

V. The Court’s Legal Reasoning in Htut

A. Standard of Review and Constitutional Framework

The court’s approach can be broken into two interlocking standards:

Abuse of discretion (procedural/judicial management) – Under Morales and Nieves, the Second Circuit asks whether Judge Román’s management of voir dire—particularly his decision to proceed with the venire instead of dismissing it—was within the “range of permissible decisions” and free from legal or factual error.
Sixth Amendment impartial jury (substantive right) – Under Perez, Irvin, and Skilling, the court asks whether any defect in voir dire resulted in Htut being tried “at the hands of a biased jury.” This requires proof of actual bias among the jurors who sat, not just among those who were excused.

These two inquiries converge in the conclusion that there was neither an abuse of discretion nor a constitutional violation. The judge:

Identified and excused jurors who expressed possible bias;
Instructed and questioned the remaining panel to ensure impartiality; and
Left no concrete indication that any seated juror could not be fair and impartial.

B. Prospective Juror No. 24: Co‑Defendants’ Guilty Pleas

Prospective Juror No. 24 stated that he had seen press coverage indicating that Htut’s “co‑defendants pleaded guilty.” Htut argued this comment was especially prejudicial.

The Second Circuit’s response rests on three key points:

No presumption of prejudice from publicity about co‑defendant pleas.
Relying on Skilling, the court states that publicity about a co‑defendant’s guilty plea does not “ordinarily” warrant an automatic presumption of prejudice. Instead, an appellant must show “the actual existence” of juror bias (Irvin).
No showing of actual bias.
The court emphasizes that Htut “has not made that showing as to Prospective Juror No. 24, let alone the jurors who were ultimately selected and who merely heard this stray comment during voir dire.” There is no evidence that any seated juror concluded that Htut must be guilty because his co‑defendants were.
Defense theory blunted any alleged prejudice.
The panel notes an important contextual fact: Htut’s own defense “premised” itself on the theory that:
- A conspiracy existed;
- The co‑defendants were guilty; but
- Htut did not intend to join the plot.
Given that strategy, the juror’s remark about the co‑defendants’ pleas did not undermine the defense narrative; it was effectively consistent with it. That further weakens any claim of prejudice.

Taken together, these considerations make it quite difficult to argue that this brief, isolated comment created a constitutional defect in the selection of the jury.

C. Prospective Juror No. 53: Political Protests and Sympathy for Defendant

Prospective Juror No. 53 said he had “protested against the government” of Myanmar and believed he could not be impartial because he might become “overly sympathetic to the Defendant.” Htut argued that this improperly exposed the venire to “extraneous evidence” suggesting that Myanmar’s government was deeply controversial and “steeped in controversy.”

The panel’s reasoning is straightforward:

Knowledge of controversy is not disqualifying.
Citing Skilling, the court reiterates that “juror impartiality . . . does not require ignorance” of current events. That members of the venire were made aware—or reminded—that Myanmar’s government was controversial is not enough to establish bias.
The juror’s bias ran in favor of the defendant.
Notably, the juror believed his political views might make him “overly sympathetic to the Defendant,” not predisposed against him. This is, at most, pro‑defense bias. Once he was excused, the principal risk was that some other juror might infer that sympathy for the defendant was warranted, which is the opposite of the prejudice the defense claims.
No evidence of negative spillover to seated jurors.
Again, there is no showing that any seated juror adopted hostile views towards the defendant based on these comments. The court stresses that familiarity with controversy is different from hostility or partiality.

This part of the opinion reinforces the broader theme that political context and public controversy do not, without more, render a panel constitutionally unfit.

D. Prospective Juror No. 49: Ambassadorial Security Risks

Prospective Juror No. 49 stated that he had a friend who was “currently serving as an ambassador in central Asia” who had faced “serious security threats.” Htut argued that this informed the venire that “embassies in Asia face serious security threats,” thereby prejudicing jurors in a case involving threats to a Myanmar ambassador.

The court rejects this argument, invoking Knapp:

“‘[T]he Constitution does not require ignorant jurors, only impartial ones.’”

Its reasoning proceeds along these lines:

At most, the venire was reminded of a general, uncontroversial fact: embassies and ambassadors in certain parts of the world may face security threats.
Such general awareness does not equate to bias about this defendant or this alleged conspiracy.
The risk of unfair prejudice is especially low here because:
- The situation described involved Central Asia, not Myanmar or the United States;
- The case concerned a plot against a UN ambassador based in New York; and
- Jurors are expected to bring general life experience, including awareness of diplomatic risks, into the jury room.

The court thus treats this as precisely the sort of innocuous background knowledge that Knapp allows: permissible awareness, not disqualifying partiality.

E. Other Prospective Juror Comments and Sidebars

In a footnote, the court acknowledges that Htut “also points to ‘[a]dditional comments by prospective jurors at sidebars.’” But it disposes of that argument succinctly: these comments occurred outside the venire’s earshot, and the jurors who made them did not sit on the jury. Consequently, they could not have prejudiced Htut.

This is an important practical point: constitutional prejudice turns on what the seated jurors saw, heard, and brought to deliberations, not on private sidebar exchanges that never reached the full panel.

F. The District Court’s “Diligent” Safeguards

The panel concludes by emphasizing that the district court:

Exercised its “ample discretion” to control voir dire;
Diligently ensured impartiality through “repeated instructions and careful questioning;” and
Excused those prospective jurors who expressed perceived bias.

This description signals that:

The trial judge did not ignore the risk of bias; rather, he confronted it through individualized questioning and removal of problematic jurors.
Curative measures—instructions and narrowing the panel to qualified jurors—are presumed effective absent evidence to the contrary.

Given this record, the Second Circuit finds no abuse of discretion and no Sixth Amendment violation.

VI. Impact and Practical Implications

A. High Bar for Claims of Venire “Taint” from Stray Comments

Although this is a summary order without precedential effect, it is citable and will be persuasive authority in the Second Circuit. The key practical message is clear: generalized claims that the venire was “tainted” by stray comments from excused jurors will almost never suffice to obtain reversal.

A defendant seeking to overturn a conviction on this basis must:

Identify specific, seated jurors who were actually biased, or
Show that the circumstances were so extreme that impartial jurors could not be selected at all (a narrow and rare category).

Mere exposure to:

Media coverage about co‑defendants’ guilty pleas;
Public controversy surrounding a foreign government; or
General knowledge about ambassadorial security risks

will not, without more, justify dismissing the entire panel or overturning a conviction.

B. Deference to Trial Judges in Managing Politically Sensitive Cases

The case involves contentious political background: the overthrow of Myanmar’s elected government and the continued representation of that government’s interests at the UN. In such settings, many jurors are likely to have opinions or at least awareness of the underlying political events.

The Second Circuit’s opinion reinforces that:

Trial judges should screen jurors for actual bias, but
They are not required to find jurors entirely devoid of political views or knowledge.

This gives district judges practical room to empanel juries in politically or internationally sensitive cases without resorting to extreme remedies like wholesale venire dismissal or venue changes absent strong evidence of pervasive prejudice.

C. Importance of Defense Strategy in Prejudice Analysis

A subtle but important feature of this case is that the alleged prejudice (knowledge of co‑defendants’ guilty pleas) aligned with the defense theory: that the co‑defendants were guilty conspirators while Htut was not. This undercuts any claim that the comment undermined the defense.

The opinion implicitly warns that:

Appeals based on asserted “taint” need to be considered in the context of the defense’s actual strategy and concessions at trial;
When the alleged prejudicial information is something the defense essentially embraced or did not contest, claims of unfairness are weaker.

D. Summary Orders, FRAP 32.1, and Persuasive Authority

The court opens by noting that:

Summary orders have no precedential effect, but
Citation to summary orders filed on or after January 1, 2007 is permitted under Fed. R. App. P. 32.1 and Local Rule 32.1.1.

Practitioners can therefore cite United States v. Htut as persuasive authority for propositions such as:

Isolated comments about co‑defendants’ guilty pleas, where jurors are excused and curative steps are taken, do not automatically taint the venire.
Knowledge of political controversy or security risks, standing alone, does not equate to jury bias.
Appellate courts will strongly defer to the trial judge’s handling of such incidents absent concrete evidence of actual bias.

VII. Key Legal Concepts Explained

A. Venire and Voir Dire

Venire – The pool of prospective jurors summoned for possible selection in a case.
Voir dire – The process by which judge and counsel question prospective jurors to determine whether they can serve fairly and impartially. It is the mechanism to:
- Identify and remove jurors with obvious or admitted bias;
- Expose less obvious attitudes or knowledge that might affect impartiality.

B. Impartial Jury vs. Ignorant Jury

The Sixth Amendment guarantees an “impartial jury” but does not guarantee that jurors:

Have never heard of the case;
Have no opinions about related political or social issues; or
Lack all prior exposure to relevant news or events.

As Irvin, Skilling, and Knapp collectively emphasize, what matters is whether jurors can:

Set aside any preconceptions;
Follow the court’s instructions; and
Render a verdict solely on the evidence presented in court and the law as given by the judge.

C. Co‑Defendants’ Guilty Pleas and Prejudice

Information that co‑defendants have pleaded guilty can be sensitive. The law recognizes that:

A co‑defendant’s guilty plea is not evidence that another defendant is guilty;
Jurors must decide each defendant’s guilt individually.

However, as Skilling explains, publicity about a co‑defendant’s plea does not automatically create a constitutional violation. Instead, courts:

Examine whether jurors exposed to such information can remain impartial;
Rely on judicial instructions and voir dire to mitigate any risk.

D. Abuse of Discretion

“Abuse of discretion” is a deferential standard of review. A trial judge’s decision is reversed only if:

It rests on an incorrect legal rule;
It is based on a clearly erroneous understanding of the facts; or
It is outside the range of reasonable options available.

In the context of jury selection, this means appellate courts are reluctant to substitute their judgment for that of the trial judge, who witnesses jurors’ demeanor and tone firsthand.

E. Summary Orders and Precedent

A summary order in the Second Circuit:

Does not have binding precedential effect on future panels;
May nonetheless be cited (with proper notation) as persuasive authority under Fed. R. App. P. 32.1 and Local Rule 32.1.1;
Often reflects the court’s application of established principles to specific facts, which can be practically influential in similar cases.

VIII. Conclusion

United States v. Htut reaffirms a central tenet of jury‑trial jurisprudence: the Constitution guarantees an impartial jury, not a jury isolated from reality. Prospective jurors may know that co‑defendants have pleaded guilty, may hold political views about a foreign government, and may be aware that ambassadors sometimes face security threats, without automatically rendering the venire unusable.

The Second Circuit’s analysis underscores three core points:

Defendants challenging voir dire must demonstrate actual bias among seated jurors, not simply point to problematic comments by excused jurors.
Prejudice is not presumed from exposure to news about co‑defendants’ guilty pleas or from knowledge of political controversy or security risks.
Trial judges have broad, and heavily deferred‑to, discretion in managing jury selection, so long as they respond to potential bias with appropriate questioning, instructions, and, when necessary, excusal of jurors.

While non‑precedential, the order in Htut provides a concrete illustration of how the Second Circuit will evaluate claims that a venire has been “tainted” by stray remarks during voir dire. It signals that such challenges will succeed only where there is a clear link between the incident and actual, demonstrable partiality in the jurors who ultimately render the verdict.