UNITED STATES of America, Appellee, v. Joseph DETTELIS, Defendant-Appellant, 372 F. App'x 105

SUMMARY ORDER Defendant-appellant Joseph Dettelis (“defendant”) was convicted after a jury trial of eleven counts of willful assistance in the preparation of a false tax return in violation of 26 U.S.C. § 7206(2), five counts of making a false claim against the United States in violation of 18 U.S.C. § 287, and four counts of making materially false statements to an agency of the United States, in violation of 18 U.S.C. § 1001(a)(3).

On May 10, 2006, the District Court imposed concurrent terms of imprisonment of 36 months for the eleven willful assistance counts and 50 -months’ imprisonment with respect to the other nine counts. Because defendant had been in federal custody for the period between his arraignment and sentencing, the 50-month term of incarceration expired less than eight months later, on January 3, 2007, after which defendant began serving his three-year term of supervised release. We assume the parties’ familiarity with the remaining facts, procedural history, and issues on appeal.

On appeal, defendant argues principally that (1) he was improperly detained before trial in violation of his constitutional rights; (2) his pretrial detention interfered with his ability to select counsel and with his constitutional rights so as to require a reversal of his conviction and dismissal of the charges against him; (3) his rights under the Speedy Trial Act were violated; (4) the District Court erred in denying his motion requesting a suppression hearing regarding the admissibility of evidence recovered from a search of his house; (5) the modifications to the terms of his supervised release were not valid; and (6) the District Court erred in other ways not specified in detail in defendant’s brief.

As an initial matter, defendant’s claims regarding his pretrial detention are made moot because he has completed his pretrial detention, as well as his prison sentence. “In general a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest.” Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (internal quotation marks and citations omitted). In Murphy, the Supreme Court noted that it is often “clear that under this general rule [a defendant’s] claim to pretrial bail [i]s moot once he [i]s convicted.

The question [i]s no longer live because even a favorable decision on it would not ... entitle! ] [a defendant] to bail.” Id. at 481-82, 102 S.Ct. 1181 (footnote omitted). Although in that case the Supreme Court held that there is an exception to the mootness rule for cases that are “capable of repetition, yet evading review,” id. at 482, 102 S.Ct. 1181, this exception does not apply in the instant case because we do not foresee in the near future that defendant will be in the same situation that is the subject of this appeal.

Defendant also claims that his Fifth and Sixth Amendment rights were violated when the magistrate judge ordered his detention pending trial. These claims are also without merit. Although pretrial detention may hamper a defendant’s ability to retain the attorney of his choice and undoubtedly makes communication with counsel and preparation for trial more cumbersome, without more, those consequences do not result in an interference of constitutional significance. See Benjamin v.

Fraser, 264 F.3d 175, 187 (2d Cir.2001) (noting that jail or prison regulations restricting defendants’ access to their attorneys are unconstitutional “where they unreasonably burden[] the inmate’s opportunity to consult with his attorney and to prepare his defense” (internal quotation marks omitted, emphasis added)); United States v.

Schmidt, 105 F.3d 82, 89 (2d Cir.1997) (“Because the right to counsel of one’s choice is not absolute, a trial court may require a defendant to proceed to trial with counsel not of defendant’s choosing.”) Additionally, any issues concerning defendant’s entitlement to bail are moot, and defendant’s Speedy Trial Act claim and his claim regarding his right to a suppression hearing are both waived. See 18 U.S.C. § 3162(a)(2) (failure of a defendant to move for dismissal prior to trial shall constitute a waiver of the right to dismissal); Fed. R. Crim. P. 12(e).

Defendant’s challenge to the modifications of his supervised release term is also barred because defendant did not file a notice of appeal within 10 days after the entry of the District Court’s modification order. See Fed. R. App. P. 4(b)(1)(A). CONCLUSION We have considered each of defendant’s arguments on appeal and find them to be without merit. For the reasons stated above, we AFFIRM the judgment of the District Court.