NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 11a0408n.06 No. 08-5449 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. MAJ OR TODD, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED ST ATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TENNESSEE

Be fore : BOG GS and KETHL EDGE, Circuit Judges; COL L I ER, District J udg e. *

KETHL EDGE, Circuit J udg e. Major Todd’s plo t to steal over $800,000 worth of ink

car tridg es crumbled afte r the Memphis police wer e tipped off to it. A fede ral jury there afte r convicted Todd of two counts of interstate transportation of stolen proper ty

. The d i s t ri ct court sentenc ed Todd to a withi n-Guidelines sentence of 51 months’ imprisonment. Todd now appe als his conviction and sentenc e on numer ous g rounds. We aff irm. I

. T h e p l o t was an inside job. Wil lie Har din worke d for a Flextronics assembly plant i n Memphis. I nitially , Har din stole a few items f rom Flextronics and sold the m to Todd ( and others)

The Honora

ble Curtis L

. Colli er, Chief United States District J udg e for the Easter n District * of Tenne ssee, sitting by

desig nation.No. 08-5449

United States v. Todd for far below reta il value. Har din then sold Todd 400 stolen, outdated ink car tridg es for $200. L ater , Todd asked Har din if he could steal some new car tridg es. Har din oblig ed in quantities of 15 to 20 at a time. Then Todd propos ed u p p i n g t h e ante. He asked Har din if they could steal pallets of

car tridg es. A pallet conta ins 4,608 cartr idge s, which would re tail f or over $101,000. Todd hoped fo r t en p al l ets , but Har din said he would only steal eig ht. Har din then rec ruited L arr y Br own, a Flextronics loading -dock worke r, to the plot, though Har din did not tell Br own about Todd. Br own told Har din that he also would need to rec ruit Valer ie Smit h, Flextronics’s loading -dock supervisor, to the plot. Hardin there afte r believe d Br own had done so. I n fac t, howeve r, Br own and Smit h repor ted the plot to Flextronics manag ement, who called the Memphis Police. The case was ref err ed to Serg eant L eo Hampton of the Auto Carg o Task For ce,

a joint fede ral-state team tasked with inve stigating interstate shipments of stolen g oods. Hampton asked F lext ronics to have Br own and Smith play alongwith the plot, which they did. Wit h Br own and Smit h supposedly now in the fold, To d d and Har din turned to secur ing transportation for the pallets. Todd hired L awr ence Mitchell, a truck driver. Mitchell told Todd that he did not have a trailer; Todd said that they would find one. Rig ht before the theft wa s executed, Todd told Hardin that he ha d arr ang ed for a trailer. Mitchell picked up the trailer from a lot in the

are a; it was later

repor ted stolen. Todd and Har din car

ried out the plot on the morning of August 18, 2005. Hampton and other members of the Auto Carg o Task For ce stationed themselves around Flextronics as Mitchell enter ed

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United States v. Todd with the truck. Smit h, working underc over for the police, direc ted four pallets to be loaded onto the truck. After the pallets had been loaded, the truck left Flextronics. Hampton tailed it from Memphis to By halia, Mississ ippi. Along the way , the truck pulled over at a truck stop. There , Hampton saw Mitchell meet with a

n unidentified per son—who he late r lea rned w as Todd. Todd’s lig ht-colore d Fo rd Taurus then pulled out of the truck stop. Mitchell’s truck followed. Hampton t ai l ed t h e vehicles throug h rura l By halia as they turned down a g rave l road. Hampton and his office rs briefly stopped and decide d to spring the trap. When H ampton continued down the g rave l r oad, he found the Taurus and the truck stopped near what he later lear ned was Todd’s mother’s home. Hampton

saw Todd walking fr o m the Taurus toward the truck. Hampton immediately place d Todd under

arr est. Todd voluntarily ag ree d to return to Memphis. Once there , he waived his Miranda rig hts and confe ssed to his involvement in the plot. A fed er al g rand jury there afte r indicted Todd on two counts of interstate transportation of stolen g oods, in violation of 18 U .S.C. § 2314—one count for the stolen car tridg es, and one count for the stolen trailer. Todd filed a motion to suppress his confe ssion. The district court denied this motion. There afte r, Todd was convicted on both counts. Under the United S t at es Sentencing Guidelines, Todd fac ed 51 to 63 months’ imprisonment. This rang e included a two-leve l leade rship enhanc ement under U.S.S.G. § 3B1.1(c ) (2006) . The district cour t sentence d Todd to 51 months’ imprisonment. This appeal followe d.

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United States v. Todd

I I

. A. T o d d ar gu es that the district court wrong ly denied his motion to suppress his confe ssion. Acc ording to Todd, the police lacke d probable cause to arr est him, thus tainting his confe ssion. The district court re

jected this ar g ument and denie d the motion. We revie w de novo the district court’s ultimate probable -ca use deter mination, but we uphold its fac tual find i n gs u n l ess clea rly err oneous. United States v. Gross , 624 F.3d 309, 314 (6th Cir. 2010). Probable c ause to arre st exis ts wher e the arr esting office r, given the information available to him at the time o f ar re s t , h as “a rea sonable g round for belief of g uilt” under the totality of the circ umstances. Maryland v. P ringle , 540 U.S. 366, 371 (2003). Todd conce des that Hampton had probable cause to arr est the driver of the For d Taurus, but say s that Hampton lacke d rea son to think that Todd was the driver. The district court found, howeve r, that Hampton saw Todd “wa lking ba ck fr om the car to the[] [t ]ruck” once both vehicles

wer e stopped. That finding was not clea rly err oneous. And u n der the circ umstances here —two vehicles pulled over on a remote g rave l road—that fac t g ave Hampton sufficie nt rea son to think that Todd was the dr iver of the Taurus. That i n turn means that Ha mpton had probable cause to arre st him. B. Todd next challeng es three aspec ts of his trial. First, Todd asser ts t h at the district court should not have barr ed him from prese nting cer tain witnesses. Todd soug ht to introduce testimony -4-No. 08-5449

United States v. Todd from other buy ers of Har din’s sto l en go ods that they did not know the g oods wer e stolen, which would contra dict Har din’s testimony that they did know. Fe dera l Rule of Evidence 608(b) prohibits “extrinsic evidenc e of specific instances of conduct intended to att ack a witness’s char acte r for truthfulness.” United States v. Seym our , 468 F.3d 378, 387 (6th Cir. 2006). Yet attacking Har din’s g ener al cre dibilit y is the exact rea son cited by Todd’s trial counsel for introducing these witnesses. Given that conce ssion, the district c ourt did not abuse its discr etion in disallowing these witnesses and their te stimony

under Rule 608( b). But Todd prese nts an alterna tive theory : his proposed evidenc e fi t s u n d er Rule 608(b)’ s supposed impeachme nt-by -contra diction exception. This exception “per mits courts to admit extrinsi c evide nce that spe cific testimony is f alse, beca use [it i s] contradicted by other e vidence .” United States v. Kincaid-Chauncey , 556 F.3d 9 2 3 , 932 (9th Cir. 2009) (interna l quotation marks omitted). Although other circ uits have rec og nized the exception under limit ed circ umstances, see, e.g. , id. at 932–33 , this circ uit never has. In any event, the exception is inapplicable here

. When presse d as to whether Har din’s other buy ers knew that the items wer e stolen, Har din hedg ed enoug h to leave littl e contra diction with the other witnesses’ testimony

. Thus the court did not err in ref using to a llow them to testify

. Second, Todd argues that the g overnme nt’s cross-e x ami n at i o n of him rende red his trial fundame ntally unfair. I n particula r, the Gover

nment asked Todd whether other witnesses wer e ly ing afte r hi s testimony contra dicted theirs. Bec ause Todd did not objec t to these questions below, we revie w this claim for plain e rror . See United States v. Boy d , — 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 -5-No. 08-5449

United States v. Todd such question, and our circ uit h as h eld i n two unpublished decisions t hat t his prac tice is not plain

err or. United States v. McCoy , 72 F. App’x 410, 415 (6th Cir. 2003); United States v. Bustos , Nos. 93-1203, -1204, 1994 WL47785, at *5 (6th Cir. Fe b. 15, 1994). So this argument fails. Third, Todd arg

ues that t h e j u ry l acke d sufficie nt evidenc e to convict him for interstate transportation of the stolen truck trailer. Her e, the only disputed element o f t h e crime is whether Todd knew that the trailer was stolen. See United State s 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 Ha rdin that he ha d “ar

rang ed” f or a tra iler. On this evidenc e, a rational jury could find beyond a re asonable doubt that Todd knew the trailer was stolen. See, e .g. , Stewart v. W olfenbarger , 595 F.3d 647, 656 ( 6th Cir. 2010). Finally , Todd argues that the district court err oneously applied a two-leve l l eadership enhanc ement under U.S.S.G. § 3B1.1( c) (2006 ). Ac co rdi ng to Todd, the court lacke d sufficie nt

ev i d en ce t hat he “contr olled” Har din or Mitchell in car rying out the plot. Control over persons, howeve r, i s mere ly one way the enhanceme nt may apply . I t also applies when the defendant “has exercised decisionmaking authority , rec r u it e d a c c o mplice s, rec eived a larg er share of the profits, was instrumental in the planning phase of the criminal venture , or exercised control or authority over at least one accom p l i ce . ” United States v. Vasquez , 560 F.3d 461, 473 (6th Cir. 2009) (empha sis ad d ed ). He re , the di strict court found that Todd was the key strateg izer in planning the crime: he initiall y p ro posed stealing pallets of car tridg es, he arr ang ed for a truck driver and stolen trailer to transport the stolen car

tridg es, and he arr ang ed for the truck to trave l from Memphis to Mississ ippi.

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United States v. Todd The court also found that Todd rec ruited Mitchell, the truck driver, to the failed plot. The rec ord supports these finding s. The enha nceme nt was prope r. T o d d moved this court for leave to file a supplemental pro se brief alleg ing in ef fe ct i v e assistance of trial counsel, which was g rante d on Aug ust 5, 2009. This court “g ener ally will not revie w an ineffe ctive assis t an ce of counsel claim on direc t appea l, as such claims are more appropr iately raised in a post-conviction motion under 42 U.S.C. § 2255 whe n an adequa te rec ord may be devel o p ed o n t h e 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)). Be cause the ineffe ctiveness of Todd’s counsel is not appar ent from the rec ord, further development of the evidentiar y rec ord would be nece ssary befor e this court could revie w the merits of that claim. See id. at 295–96. For example, Todd asser

ts that his c ounsel failed to obtain a copy of the suppression-he aring transcr ipt to use to impeach the g overnme nt’s witnesses, that he did not introduce into evidenc e tape- rec orded

conver sations betwee n Har din and Br own, and that he failed to impeach the testimony of Har din and Hampton. Ba sed on the rec ord on appea l, this panel could not addre ss whether these wer e strateg ic choice s on counsel’s pa

rt. We decline to addre ss the other claims Todd asser ts in his pro se brief, as this court g ener ally does not consider pro se claims broug ht by a defe ndant who is repr esente d 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 ineffe ctive. The other claims he included in the pro se br ief fa ll outsi de of the scope of his moti on. The district cour

t’s judgme nt is affirmed.

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