United States v. Rosado: Reaffirming Standards for Trying a Defendant in Absentia Under Plain-Error Review

I. Introduction

In United States v. Rosado, No. 23‑6563 (2d Cir. Nov. 19, 2025) (summary order), the United States Court of Appeals for the Second Circuit addressed the scope of a trial court’s authority to proceed with a criminal jury trial when a represented defendant, who has already appeared for jury selection, later refuses to appear in the courtroom.

The case arises from serious federal narcotics charges. Leonardo Hector Rosado, a.k.a. “Caronte,” was convicted after a jury trial in the District of Connecticut (Thompson, J.) of:

Two counts of possession with intent to distribute 400 grams or more of fentanyl, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(vi); and
One count of possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii).

He received concurrent terms of 170 months’ imprisonment on each count and five years of supervised release. On appeal, he did not challenge the sufficiency of the evidence or the substantive reasonableness of the sentence. Instead, he focused on a single, procedurally significant question:

Did the district court commit reversible error by proceeding to trial in Rosado’s absence after he refused to come to court?

Because Rosado did not object below, the Second Circuit applied plain-error review. The panel (Judges Walker, Carney, and Sullivan) affirmed, holding that:

Rosado knowingly and voluntarily waived his right to be present at trial; and
The district court properly found a controlling public interest in continuing the trial in his absence.

Although rendered as a summary order (and therefore nonprecedential under the Second Circuit’s Local Rule 32.1.1), the decision is doctrinally important. It reinforces and clarifies:

When a defendant’s refusal to appear constitutes a valid waiver of the right to be present;
How alleged mistreatment by corrections personnel affects (or does not affect) the voluntariness of such a waiver; and
The scope of a district court’s duty to probe a defendant’s possible misunderstandings about appellate remedies or the “legitimacy” of the proceedings.

II. Summary of the Opinion

The Second Circuit affirmed Rosado’s conviction and sentence, concluding that there was no error—much less plain error—in the district court’s decision to proceed with the jury trial in Rosado’s absence.

The court’s reasoning proceeded in two principal steps:

Waiver of the Right to Be Present: The court held that Rosado knowingly and voluntarily waived his right to attend the trial. Key facts included:
- He had been present for jury selection.
- He thereafter repeatedly refused to leave his cell to attend court.
- He disregarded an order to appear via video.
- When physically brought before the court under a force order, he explicitly told the judge:
  - “I don’t want a trial. … [T]hat’s why I came here, to put it on the record.”
  - “I’m not in agreement with anything that has to do with this trial, so if you want to have it without me, that’s fine.”
- He acknowledged that declining to attend the trial was equivalent to declining to testify, reflecting his understanding of the consequences.
The Second Circuit held that no personal in-court colloquy beyond this was required, particularly where Rosado was represented by counsel, and that his waiver was “knowing, intelligent, and uncoerced.”
Public Interest in Proceeding in Absentia: Once waiver was established, the district court still had to determine whether the public interest supported continuing the trial without the defendant. Relying on precedents such as United States v. Tureseo and United States v. Nichols, the Second Circuit agreed that key public interests were served by going forward:
- Avoiding inconvenience to empaneled jurors and assembled witnesses;
- Preventing a contumacious defendant from dictating the conduct and timing of his trial; and
- Serving the broader interest in the speedy administration of justice.
The panel concluded the district court appropriately balanced these factors and did not err in proceeding.

Rosado’s arguments based on alleged physical mistreatment and on his supposed misunderstandings about potential Second Circuit intervention were rejected. The court distinguished cases where pressure or abuse was alleged to have caused the waiver, noting that here Rosado himself claimed he was being punished for refusing to appear, not coerced into refusing.

III. Legal Framework and Doctrinal Context

A. The Constitutional and Rule-Based Right to Be Present

A criminal defendant has a long-recognized right to be present at his trial, rooted in:

The Sixth Amendment (right to confront witnesses and to be present for his own defense); and
Federal Rule of Criminal Procedure 43, which generally requires a defendant’s presence at every trial stage, but allows the trial to proceed when a defendant, initially present, later voluntarily absents himself.

This right is fundamental but waivable. Any waiver must be “knowing and voluntary,” and courts are cautioned that such a waiver “is not to be presumed.” (United States v. Yannai, 791 F.3d 226, 239 (2d Cir. 2015)).

B. Trials in Absentia After Trial Has Begun

The Supreme Court and the Second Circuit have drawn a critical distinction:

Initial absence: Under Crosby v. United States, 506 U.S. 255 (1993), a defendant who has never appeared for the start of trial cannot be tried in absentia under Rule 43.
Subsequent voluntary absence: Once the defendant has initially appeared (e.g., for jury selection), and knows the trial is underway, he can validly waive his right to be present by voluntarily failing to appear or by expressly declining to participate. In that scenario, courts may proceed without him.

Rosado falls squarely into the second category: he attended jury selection and then, with full awareness that the trial was underway, refused multiple opportunities to appear.

C. Plain-Error Review

Because Rosado failed to object contemporaneously to being tried in absentia, the Second Circuit reviewed his claim only for plain error under United States v. Marcus, 560 U.S. 258 (2010). To obtain relief, he had to show:

Error – The district court actually erred.
Clear or obvious error – The error was not merely debatable but plainly contrary to law.
Effect on substantial rights – Typically, a reasonable probability that the error affected the outcome.
Effect on the fairness, integrity, or public reputation of judicial proceedings – Even then, the court must exercise its discretion to correct only errors that seriously undermine the justice system.

The panel concluded that Rosado could not satisfy even the first two steps; in other words, the district court’s decision was not erroneous, let alone “clear or obvious” error.

D. Public Interest in Proceeding

Second Circuit case law adds a second layer of protection: even where the defendant has waived his right to be present, the court may not automatically proceed in absentia. It must evaluate whether, “on balance,” there is a controlling public interest in completing the trial without him. See United States v. Tureseo, 566 F.3d 77, 84 (2d Cir. 2009).

The court considers, among other factors:

Inconvenience and cost to jurors and witnesses;
The effect on docket management and delay of other cases;
The risk of rewarding manipulative or contumacious behavior; and
The overall interest in the prompt administration of justice.

IV. Detailed Analysis of the Court’s Reasoning

A. Establishing a Knowing and Voluntary Waiver

The Second Circuit began by restating the central requirement that a defendant’s waiver of the right to be present must be “both ‘knowing’ and ‘voluntary.’” (United States v. Fontanez, 878 F.2d 33, 36 (2d Cir. 1989)).

1. The Factual Record of Refusals

The record was particularly strong:

February 16, 2023 – Rosado refused to leave his cell at the Wyatt Detention Center to attend court.
That same day, he also refused to participate in a video conference the court scheduled to discuss his non-appearance.
February 17, 2023 – He again refused to “willingly” go to court, forcing corrections officers to rely on a court-issued use-of-force order to extract him from his cell and transport him to the courthouse.

Even in this context, when he was physically present in the courtroom pursuant to the force order, Rosado insisted

“I don’t want a trial. … [T]hat’s why I came here, to put it on the record.”
“I’m not in agreement with anything that has to do with this trial, so if you want to have it without me, that’s fine.”

The district court attempted to explain the consequences of his decision, including that he would be waiving his right to testify. Rosado responded that he understood, stating, “Me not wanting to be at the trial is the same as not wanting to testify.” This exchange powerfully supports both knowledge and voluntariness.

2. No Requirement of a Particular Script or Formal Colloquy

The Second Circuit reiterated its prior position that a defendant’s waiver of the right to be present:

May be made expressly or by voluntarily failing to appear (Clark v. Stinson, 214 F.3d 315, 323–24 (2d Cir. 2000)); and
Does not require a formal, in-court “magic words” colloquy or the defendant’s personal analysis of every procedural alternative (Polizzi v. United States, 926 F.2d 1311, 1322–23 (2d Cir. 1991)).

The Supreme Court in Crosby had explained that a defendant’s initial presence at trial helps ensure that any subsequent waiver is knowing. Once a defendant:

Has appeared at the start of the trial (e.g., jury selection), and
Is aware the trial is in progress,

he cannot plausibly claim ignorance that if he refuses to return to the courtroom, “the trial could continue in his absence.” Crosby, 506 U.S. at 262 (quoting Taylor v. United States, 414 U.S. 17, 20 (1973)).

Rosado’s situation fits this paradigm neatly. He “attend[ed] jury selection and then disappear[ed] for the remainder of his trial,” as his own brief acknowledged. The court highlighted that, especially under these circumstances, it cannot be said that he failed to understand that his refusal to appear would result in the trial proceeding without him.

B. Addressing Alleged Mistreatment and Coercion

On appeal, Rosado argued that his waiver was not voluntary because the district court did not sufficiently probe his “repeated claims of physical mistreatment” by corrections officers.

The panel took this argument seriously, but ultimately found it unpersuasive for two key reasons:

No claim that mistreatment was intended to coerce his absence In United States v. Salim, 690 F.3d 115 (2d Cir. 2012), cited by Rosado, the defendant’s alleged waiver of the right to be present was tainted by fears of intimidation and physical abuse that might have been designed to keep him out of the courtroom. In such circumstances, waiver might not be truly voluntary.

By contrast, Rosado never claimed that any physical mistreatment was calculated to force him not to attend trial. To the contrary, he conceded that he believed he was being punished for exercising his self-chosen “right” not to appear:
- He stated he was put in a “punishment cell” “just because I didn’t want to appear for a trial.”
Thus, any mistreatment (assuming it occurred) was—by his own account—a consequence of his refusal to appear, not a cause of that refusal.
Clear evidence of autonomous decision-making The record reflected that Rosado “chose of his own volition not to attend his trial,” echoing language from United States v. Nichols, 56 F.3d 403, 416 (2d Cir. 1995). Far from being cowed into absence, he asserted his decision repeatedly and insisted on putting his refusal “on the record.”

In sum, the panel distinguished Salim and held that Rosado’s waiver was uncoerced. The district court’s failure to conduct a more extensive factual investigation into the alleged mistreatment did not rise to the level of error, much less plain error, because there was no indication that any abuse bore on his decision whether to attend trial.

C. Alleged Misunderstanding of Appellate Remedies and Trial Legitimacy

Rosado also contended that his waiver was not “knowing” because he may have:

Mistakenly believed that the Second Circuit would intervene and halt his trial to consider his pro se pretrial motions; or
Believed that any trial going forward while his motion was pending would be illegitimate and void.

He argued that the district court erred by not exploring and correcting these possible misapprehensions.

The Second Circuit rejected this argument, clarifying the trial court’s obligations in this context:

The trial court must ensure the defendant “knows that he has the opportunity to attend and knows the ramifications of his choices.” (Nichols, 56 F.3d at 417.)
But the court is not required to root out and correct “every possible misapprehension” a defendant might have about collateral legal or strategic issues, especially where the defendant is represented by counsel.
Polizzi is particularly important: it makes clear that a court is not obliged to ensure the defendant is aware of all possible alternatives before accepting a waiver of the right to be present; the absence of such a comprehensive advisement does not make the waiver unknowing.

Here, the district court explained the immediate and practical consequence of Rosado’s choice (he would not be present; he would not testify), and Rosado stated that he understood. That was sufficient to render the waiver knowing and intelligent; the Constitution and Rule 43 do not require that the court parse and correct speculative misunderstandings about appellate procedure or the “legitimacy” of future rulings.

D. Public Interest in Proceeding With Trial in Absentia

After finding a valid waiver, the district court evaluated whether to proceed in Rosado’s absence. The Second Circuit reiterated the two-step analysis derived from Tureseo:

Confirm waiver of the right to be present; and
Determine whether there is, “on balance,” a controlling public interest in continuing the trial without the defendant.

The panel underscored specific public interests recognized in prior Second Circuit decisions:

Avoiding inconvenience and delay for already-assembled jurors and witnesses;
Preventing contumacious defendants from dictating trial schedules, as articulated in Nichols;
Ensuring the speedy administration of justice and prompt trials, as highlighted in United States v. Pastor, 557 F.2d 930, 934 (2d Cir. 1977).

The district court had explicitly reviewed these factors on the record, explaining that:

Jurors had been selected and were available;
Witnesses were prepared to testify;
Postponing or aborting the trial would significantly disrupt the court’s docket; and
Allowing Rosado to manipulate proceedings by refusing to attend would be contrary to the integrity of the judicial process.

The Second Circuit concluded that these considerations easily justified proceeding in Rosado’s absence and that the district court did not err when it did so.

E. Application of Plain-Error Standard

Critically, the case was governed by plain-error review because Rosado did not object below to being tried in absentia. This had several consequences:

Even if the appellate court had some doubt about the ideal scope of the district court’s inquiry, reversal would require that the district court’s approach be clearly and obviously wrong under existing law.
Given the well-developed Second Circuit and Supreme Court case law supporting trials in absentia after a knowing and voluntary waiver, Rosado’s burden was particularly steep; at the very least, there was “reasonable dispute” on his arguments, which alone defeats a claim of “clear or obvious” error.

The panel explicitly stated that it saw “no error – much less a ‘clear or obvious’ one” in the district court’s findings and decision. Because step (2) of the Marcus test fails, the court did not need to engage in extended analysis of whether any alleged error affected substantial rights or undermined the fairness and integrity of the proceedings.

V. Precedents Cited and Their Role in the Decision

A. Standards of Review and Waiver Doctrine

United States v. Marcus, 560 U.S. 258 (2010) Provided the four-part test for plain-error review. The panel used Marcus to structure its analysis and to emphasize Rosado's burden to demonstrate clear or obvious error affecting substantial rights and the integrity of the proceedings.
United States v. Salim, 690 F.3d 115 (2d Cir. 2012) Cited by Rosado. In Salim, concerns about intimidation and physical abuse raised doubts about whether the defendant’s waiver of presence was truly voluntary. The panel distinguished Salim on the key ground that Rosado never alleged that any mistreatment was intended to coerce him into non-appearance; rather, he believed he was punished because he had voluntarily refused to appear.
United States v. Leroux, 36 F.4th 115 (2d Cir. 2022) Cited for the proposition that issues not preserved below are reviewed for plain error. It reinforces the procedural posture under which Rosado’s claim was evaluated.

B. Waiver of the Right to Be Present

United States v. Yannai, 791 F.3d 226 (2d Cir. 2015) Emphasized that waiver of the right to be present “is not to be presumed.” The court invoked Yannai as a reminder that trial courts must have a solid evidentiary basis before deeming the right to be present waived.
United States v. Fontanez, 878 F.2d 33 (2d Cir. 1989) Described the requirement that waiver must be “knowing” and “voluntary.” The panel grounded its finding about Rosado’s waiver in the Fontanez standards.
Clark v. Stinson, 214 F.3d 315 (2d Cir. 2000) Held that a defendant may waive his right to be present either explicitly or by voluntarily failing to appear, and “explicitly repudiated” any rule demanding a personal statement in open court to effect a valid waiver.
Polizzi v. United States, 926 F.2d 1311 (2d Cir. 1991) Clarified that the district court is not required to ensure the defendant understands every possible alternative to being tried in absentia or all conceivable ramifications. This precedent was crucial in rejecting Rosado’s argument that his supposed misunderstandings about appellate intervention invalidated his waiver.

C. Supreme Court Guidance on Trials in Absentia

Crosby v. United States, 506 U.S. 255 (1993) Held that a defendant who never appears for trial cannot be tried in absentia under Rule 43. At the same time, Crosby affirmed that a defendant initially present—and thus aware that trial has begun—can waive his right to be present by deciding not to return. The Rosado panel drew on this reasoning, noting that Rosado’s initial presence at jury selection assured that any subsequent waiver was informed.
Taylor v. United States, 414 U.S. 17 (1973) Recognized that when a defendant, having been present, voluntarily absents himself knowing that proceedings will continue, he cannot later complain that the trial continued in his absence. The Rosado order quotes Taylor (via Crosby) to underscore that Rosado, aware that “judge, jury, witnesses and lawyers [were] present and ready to continue,” would know trial could proceed without him.

D. Public Interest and Court Control Over Proceedings

United States v. Nichols, 56 F.3d 403 (2d Cir. 1995) Important in two respects:
- Confirmed that a defendant may “of his own volition” choose not to attend trial, and that such a choice can be a valid waiver.
- Highlighted the public interest in preventing defendants from “dictating the conduct of their trials” and in avoiding inconvenience and disruption to jurors and witnesses.
Rosado’s refusal, and the district court’s response, fit squarely within the Nichols framework.
United States v. Tureseo, 566 F.3d 77 (2d Cir. 2009) Articulated the requirement that, after finding a waiver, the court must also find “on balance a controlling public interest” justifying proceeding in absentia. Rosado’s order expressly follows this two-step structure, confirming its centrality in Second Circuit doctrine.
United States v. Pastor, 557 F.2d 930 (2d Cir. 1977) Quoted for the principle that there is a public interest in seeing the accused “speedily” brought to trial. This supports the idea that courts need not indefinitely postpone proceedings at the whim of a defendant who refuses to appear.

VI. Complex Concepts Simplified

A. What Does It Mean to Be “Tried in Absentia”?

Being tried in absentia means the trial continues without the defendant physically in the courtroom. This is ordinarily disfavored because:

The defendant cannot personally hear the witnesses and evidence;
He cannot easily consult with his lawyer in real time; and
It may affect his ability to testify or to assist in strategy decisions.

However, when the defendant chooses not to attend despite knowing the consequences, and when public interests strongly favor proceeding, courts can and do continue without him.

B. “Knowing and Voluntary” Waiver, in Plain Terms

A waiver is:

Knowing if the person understands what right he is giving up and what will happen as a result.
Voluntary if the decision is made freely, not because someone forced or threatened him or otherwise improperly pressured him.

For Rosado, “knowing” was satisfied because:

He had already seen how trial proceedings worked during jury selection;
He knew that judge, jury, and counsel were ready to proceed;
The district judge told him he would lose the opportunity to testify; and
He indicated he understood and persisted in his choice.

“Voluntary” was satisfied because:

His non-appearance was based on his own stated refusal to participate;
Any alleged mistreatment was, by his own account, punishment for his refusal, not the reason for it; and
He consistently affirmed that he did not want to come to court.

C. Plain-Error Review, Simplified

Plain-error review is a highly deferential form of appellate review used when the defendant did not object at the time the alleged error occurred. To win under this standard, an appellant must show:

Something the trial court did was actually wrong.
The wrongness was obvious under the law at the time.
The mistake probably changed the outcome of the trial.
The error is serious enough to make the whole proceeding look unfair or illegitimate.

Failing any one of these steps means the conviction will stand. In Rosado’s case, the Second Circuit concluded that:

There was no mistake in treating his refusal as a valid waiver; and
Even if one debated some details of the trial court’s inquiries, nothing approached the level of being “clearly or obviously” wrong.

D. “Public Interest” in Continuing a Trial

The “public interest” in this context refers to more than just the specific prosecutor or individual victims. It includes:

The interests of jurors who have already taken time to serve;
Witnesses who have been subpoenaed, prepared, and sometimes traveled to testify;
The broader community’s interest in having criminal charges resolved without unnecessary delay;
The need to prevent defendants from manipulating the system by refusing to appear or otherwise engaging in misconduct to disrupt proceedings.

In short, courts are not required to let the criminal justice system grind to a halt because a defendant refuses to come out of his cell.

E. Use-of-Force Orders and Their Role

The district court in Rosado’s case issued a “use-of-force order,” authorizing officers to use reasonable force to bring him to court. This is notable for two reasons:

It reflects judicial reluctance to try defendants in absentia without serious efforts first being made to secure their presence.
It also underscores the defendant’s agency: even under compulsion to appear, Rosado used the opportunity not to participate in the trial, but to insist on the record that he wanted no trial and did not wish to be present.

VII. Impact and Implications

A. For Trial Courts

Even though this is a summary order and thus nonprecedential, it offers a clear roadmap for district judges facing similar situations:

Document the defendant’s refusals and explanations The record in Rosado is rich: it includes multiple refusals, counsel’s representations, a forced appearance, and the defendant’s own statements. This level of documentation is critical for appellate review.
Give the defendant a meaningful opportunity to reconsider By ordering video participation and later a force order to bring Rosado to court, Judge Thompson demonstrated that the court did not rush to try him in absentia. The Second Circuit’s approval encourages trial courts to similarly make reasonable efforts to secure attendance.
Explain core consequences, not every possible legal nuance The order suggests that a judge need not interrogate every potential misunderstanding—especially of sophisticated appellate procedures—so long as the defendant understands:
- He has the right to be present;
- He is choosing not to exercise that right; and
- This choice means the trial will go forward and he will not be able to testify or assist in the same way.
Make a clear, on-the-record public-interest finding The panel’s reliance on Tureseo, Nichols, and Pastor underscores that courts should articulate why continuing the trial serves the public interest—jurors, witnesses, docket management, and broader justice concerns.

B. For Defense Counsel and Defendants

Rosado also carries important practical lessons:

Refusals to appear will likely be treated as waivers A defendant cannot safely assume that simply remaining in his cell will delay the trial. If he has already appeared at the outset of proceedings, repeated, deliberate refusals to appear are very likely to be construed as a knowing and voluntary waiver.
Pro se motions and “jurisdictional” rhetoric do not immunize from trial Defendants sometimes file pro se motions asserting that the court lacks jurisdiction or that they are not bound by its authority. Rosado suggests that such beliefs—without more—will not render a waiver unknowing, especially when counsel is present and the court has adequately explained the immediate consequences.
If mistreatment is alleged, it must be tied to the waiver decision If a defendant wishes to argue that physical abuse or coercion vitiated his waiver, he must allege and support that such mistreatment was aimed at preventing him from attending or otherwise compelled his absence. Simply claiming punishment after refusing to appear will not suffice.

C. For Appellate Practice

Rosado is also instructive from an appellate standpoint:

Preserve objections Had Rosado or his counsel clearly objected on the record to proceeding in absentia—e.g., disputing the adequacy of the court’s colloquy or the impact of alleged abuse—the standard of review might have been more favorable (abuse of discretion or de novo). Under plain-error review, however, his arguments faced a steep uphill battle.
Summary orders still matter Even though this order is not precedential, under Fed. R. App. P. 32.1 and Local Rule 32.1.1, it can be cited in federal filings. Future litigants may invoke it as persuasive authority on the application of existing principles about waiver, voluntariness, and the public interest in proceeding.

D. Substantive Criminal Law Context

Substantively, this case involves large-quantity fentanyl and cocaine offenses under 21 U.S.C. § 841, serious crimes carrying substantial mandatory minimum penalties. The significance of the conviction—and the community’s interest in seeing such cases resolved promptly—likely strengthened the public-interest analysis and the court’s willingness to proceed despite Rosado’s absence.

VIII. Conclusion

United States v. Rosado stands as a thorough and carefully reasoned application of established law on trials in absentia and waiver of the right to be present, under the demanding lens of plain-error review. Despite its status as a summary order, it provides a coherent synthesis of Supreme Court and Second Circuit doctrine.

The core takeaways can be summarized as follows:

Waiver of the right to be present must be knowing and voluntary, but courts look to the totality of the record, not to formalistic scripts. Rosado’s repeated refusals to appear, his understanding of the consequences, and his stated desire to have the trial proceed without him were more than sufficient to demonstrate a valid waiver.
Alleged mistreatment must be causally linked to the waiver to undermine voluntariness. Rosado’s own characterization—that any punishment followed his refusal to appear, rather than causing it—defeated his attempt to analogize his case to Salim.
Courts need not dispel every possible misunderstanding about appellate remedies or “legitimacy” so long as they explain the immediate consequences of non-appearance. The presence of counsel, combined with a straightforward explanation of rights and consequences, satisfies the requirement of a knowing waiver.
Even after waiver, a trial in absentia requires a considered public-interest determination. The factors emphasized—juror and witness inconvenience, docket management, and preventing defendants from controlling their trials by intransigence—reflect core policy concerns in the administration of criminal justice.
Under plain-error review, appellate relief is rare absent truly egregious procedural missteps. Rosado’s failure to object below, combined with the strength of the existing legal framework supporting the district court’s actions, virtually foreclosed reversal.

In the broader legal landscape, Rosado reinforces a clear message: a defendant may decline to attend his trial, but he may not use that choice as a tool to paralyze the process. Once he has been given a fair opportunity to be present and has knowingly and voluntarily refused, the criminal justice system may, and in many cases should, proceed without him.