                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0408n.06

                                          No. 08-5449
                                                                                         FILED
                          UNITED STATES COURT OF APPEALS                            Jun 22, 2011
                               FOR THE SIXTH CIRCUIT
                                                                              LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )
v.                                                       )   ON APPEAL FROM THE UNITED
                                                         )   STATES DISTRICT COURT FOR
MAJOR TODD,                                              )   THE WESTERN DISTRICT OF
                                                         )   TENNESSEE
       Defendant-Appellant.                              )
                                                         )
                                                         )



       Before: BOGGS and KETHLEDGE, Circuit Judges; COLLIER, District Judge.*


       KETHLEDGE, Circuit Judge. Major Todd’s plot to steal over $800,000 worth of ink

cartridges crumbled after the Memphis police were tipped off to it. A federal jury thereafter

convicted Todd of two counts of interstate transportation of stolen property. The district court

sentenced Todd to a within-Guidelines sentence of 51 months’ imprisonment. Todd now appeals

his conviction and sentence on numerous grounds. We affirm.

                                                I.

       The plot was an inside job. Willie Hardin worked for a Flextronics assembly plant in

Memphis. Initially, Hardin stole a few items from Flextronics and sold them to Todd (and others)



       *
       The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District
of Tennessee, sitting by designation.
No. 08-5449
United States v. Todd

for far below retail value. Hardin then sold Todd 400 stolen, outdated ink cartridges for $200. Later,

Todd asked Hardin if he could steal some new cartridges. Hardin obliged in quantities of 15 to 20

at a time.

        Then Todd proposed upping the ante. He asked Hardin if they could steal pallets of

cartridges. A pallet contains 4,608 cartridges, which would retail for over $101,000. Todd hoped

for ten pallets, but Hardin said he would only steal eight. Hardin then recruited Larry Brown, a

Flextronics loading-dock worker, to the plot, though Hardin did not tell Brown about Todd. Brown

told Hardin that he also would need to recruit Valerie Smith, Flextronics’s loading-dock supervisor,

to the plot. Hardin thereafter believed Brown had done so.

        In fact, however, Brown and Smith reported the plot to Flextronics management, who called

the Memphis Police. The case was referred to Sergeant Leo Hampton of the Auto Cargo Task Force,

a joint federal-state team tasked with investigating interstate shipments of stolen goods. Hampton

asked Flextronics to have Brown and Smith play along with the plot, which they did.

        With Brown and Smith supposedly now in the fold, Todd and Hardin turned to securing

transportation for the pallets. Todd hired Lawrence Mitchell, a truck driver. Mitchell told Todd that

he did not have a trailer; Todd said that they would find one. Right before the theft was executed,

Todd told Hardin that he had arranged for a trailer. Mitchell picked up the trailer from a lot in the

area; it was later reported stolen.

        Todd and Hardin carried out the plot on the morning of August 18, 2005. Hampton and other

members of the Auto Cargo Task Force stationed themselves around Flextronics as Mitchell entered



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United States v. Todd

with the truck. Smith, working undercover for the police, directed four pallets to be loaded onto the

truck.

         After the pallets had been loaded, the truck left Flextronics. Hampton tailed it from Memphis

to Byhalia, Mississippi. Along the way, the truck pulled over at a truck stop. There, Hampton saw

Mitchell meet with an unidentified person—who he later learned was Todd. Todd’s light-colored

Ford Taurus then pulled out of the truck stop. Mitchell’s truck followed. Hampton tailed the

vehicles through rural Byhalia as they turned down a gravel road. Hampton and his officers briefly

stopped and decided to spring the trap. When Hampton continued down the gravel road, he found

the Taurus and the truck stopped near what he later learned was Todd’s mother’s home. Hampton

saw Todd walking from the Taurus toward the truck. Hampton immediately placed Todd under

arrest. Todd voluntarily agreed to return to Memphis. Once there, he waived his Miranda rights and

confessed to his involvement in the plot.

         A federal grand jury thereafter indicted Todd on two counts of interstate transportation of

stolen goods, in violation of 18 U.S.C. § 2314—one count for the stolen cartridges, and one count

for the stolen trailer. Todd filed a motion to suppress his confession. The district court denied this

motion. Thereafter, Todd was convicted on both counts. Under the United States Sentencing

Guidelines, Todd faced 51 to 63 months’ imprisonment. This range included a two-level leadership

enhancement under U.S.S.G. § 3B1.1(c) (2006). The district court sentenced Todd to 51 months’

imprisonment. This appeal followed.




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United States v. Todd



                                                 II.

                                                 A.

       Todd argues that the district court wrongly denied his motion to suppress his confession.

According to Todd, the police lacked probable cause to arrest him, thus tainting his confession. The

district court rejected this argument and denied the motion.

       We review de novo the district court’s ultimate probable-cause determination, but we uphold

its factual findings unless clearly erroneous. United States v. Gross, 624 F.3d 309, 314 (6th Cir.

2010). Probable cause to arrest exists where the arresting officer, given the information available

to him at the time of arrest, has “a reasonable ground for belief of guilt” under the totality of the

circumstances. Maryland v. Pringle, 540 U.S. 366, 371 (2003).

       Todd concedes that Hampton had probable cause to arrest the driver of the Ford Taurus, but

says that Hampton lacked reason to think that Todd was the driver. The district court found,

however, that Hampton saw Todd “walking back from the car to the[] [t]ruck” once both vehicles

were stopped. That finding was not clearly erroneous. And under the circumstances here—two

vehicles pulled over on a remote gravel road—that fact gave Hampton sufficient reason to think that

Todd was the driver of the Taurus. That in turn means that Hampton had probable cause to arrest

him.

                                                 B.

       Todd next challenges three aspects of his trial. First, Todd asserts that the district court

should not have barred him from presenting certain witnesses. Todd sought to introduce testimony

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No. 08-5449
United States v. Todd

from other buyers of Hardin’s stolen goods that they did not know the goods were stolen, which

would contradict Hardin’s testimony that they did know. Federal Rule of Evidence 608(b) prohibits

“extrinsic evidence of specific instances of conduct intended to attack a witness’s character for

truthfulness.” United States v. Seymour, 468 F.3d 378, 387 (6th Cir. 2006). Yet attacking Hardin’s

general credibility is the exact reason cited by Todd’s trial counsel for introducing these witnesses.

Given that concession, the district court did not abuse its discretion in disallowing these witnesses

and their testimony under Rule 608(b).

       But Todd presents an alternative theory: his proposed evidence fits under Rule 608(b)’s

supposed impeachment-by-contradiction exception. This exception “permits courts to admit

extrinsic evidence that specific testimony is false, because [it is] contradicted by other evidence.”

United States v. Kincaid-Chauncey, 556 F.3d 923, 932 (9th Cir. 2009) (internal quotation marks

omitted). Although other circuits have recognized the exception under limited circumstances, see,

e.g., id. at 932–33, this circuit never has. In any event, the exception is inapplicable here. When

pressed as to whether Hardin’s other buyers knew that the items were stolen, Hardin hedged enough

to leave little contradiction with the other witnesses’ testimony. Thus the court did not err in

refusing to allow them to testify.

       Second, Todd argues that the government’s cross-examination of him rendered his trial

fundamentally unfair. In particular, the Government asked Todd whether other witnesses were lying

after his testimony contradicted theirs. Because Todd did not object to these questions below, we

review this claim for plain error. See United States v. Boyd, — F.3d —, 2011 WL 1304466, at *9

(6th Cir. 2011). There was none here, since the Supreme Court has never ruled on the propriety of

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No. 08-5449
United States v. Todd

such question, and our circuit has held in two unpublished decisions that this practice is not plain

error. United States v. McCoy, 72 F. App’x 410, 415 (6th Cir. 2003); United States v. Bustos, Nos.

93-1203, -1204, 1994 WL 47785, at *5 (6th Cir. Feb. 15, 1994). So this argument fails.

       Third, Todd argues that the jury lacked sufficient evidence to convict him for interstate

transportation of the stolen truck trailer. Here, the only disputed element of the crime is whether

Todd knew that the trailer was stolen. See United States v. Monus, 128 F.3d 376, 384 (6th Cir.

1997). Trial testimony included the following: After Mitchell told Todd that he did not own a trailer,

Todd said he would find one. And Todd later told Hardin that he had “arranged” for a trailer. On

this evidence, a rational jury could find beyond a reasonable doubt that Todd knew the trailer was

stolen. See, e.g., Stewart v. Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 2010).

       Finally, Todd argues that the district court erroneously applied a two-level leadership

enhancement under U.S.S.G. § 3B1.1(c) (2006). According to Todd, the court lacked sufficient

evidence that he “controlled” Hardin or Mitchell in carrying out the plot. Control over persons,

however, is merely one way the enhancement may apply. It also applies when the defendant “has

exercised decisionmaking authority, recruited accomplices, received a larger share of the profits, was

instrumental in the planning phase of the criminal venture, or exercised control or authority over at

least one accomplice.” United States v. Vasquez, 560 F.3d 461, 473 (6th Cir. 2009) (emphasis

added). Here, the district court found that Todd was the key strategizer in planning the crime: he

initially proposed stealing pallets of cartridges, he arranged for a truck driver and stolen trailer to

transport the stolen cartridges, and he arranged for the truck to travel from Memphis to Mississippi.



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United States v. Todd

The court also found that Todd recruited Mitchell, the truck driver, to the failed plot. The record

supports these findings. The enhancement was proper.

       Todd moved this court for leave to file a supplemental pro se brief alleging ineffective

assistance of trial counsel, which was granted on August 5, 2009. This court “generally will not

review an ineffective assistance of counsel claim on direct appeal, as such claims are more

appropriately raised in a post-conviction motion under 42 U.S.C. § 2255 when an adequate record

may be developed on the issue.” United States v. McCarty, 628 F.3d 284, 295 (6th Cir. 2010)

(quoting United States v. Long, 190 F.3d 471, 478 (6th Cir. 1999)). Because the ineffectiveness of

Todd’s counsel is not apparent from the record, further development of the evidentiary record would

be necessary before this court could review the merits of that claim. See id. at 295–96. For example,

Todd asserts that his counsel failed to obtain a copy of the suppression-hearing transcript to use to

impeach the government’s witnesses, that he did not introduce into evidence tape-recorded

conversations between Hardin and Brown, and that he failed to impeach the testimony of Hardin and

Hampton. Based on the record on appeal, this panel could not address whether these were strategic

choices on counsel’s part.

       We decline to address the other claims Todd asserts in his pro se brief, as this court generally

does not consider pro se claims brought by a defendant who is represented by counsel. See United

States v. Martinez, 588 F.3d 301, 328 (6th Cir. 2009). Todd’s motion to file a pro se supplemental

brief discussed only the claim that his trial counsel was ineffective. The other claims he included

in the pro se brief fall outside of the scope of his motion.

       The district court’s judgment is affirmed.

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