Petition for Writ of Certiorari — Tykei Garner, Petitioner v. United States

APPENDIX

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INDEX TO APPENDIX

1A. Third Circuit Court of Appeals May 29, 2020 Opinion

2A. Third Circuit Court of Appeals July 24, 2020 Order

Jil

APPENDIX 1A

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRUCIT

No. 19-1038

UNITED STATES OF AMERICA

Vv.

TYKEI GARNER, Appellant

On Appeal from the United States District Court

For the Middle District of Pennsylvania

(D.C. No. 1-16-cr-00341-002)

District Judge: Honorable John E. Jones III

(Opinion Filed: May 29, 2020)

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

These consolidated appeals require us to determine

whether a Pennsylvania state trooper unlawfully prolonged

a traffic stop. Appellants Jerry Fruit and Tykei Garner

challenge the District Court’s denial of their joint motion to

suppress evidence, claiming the traffic stop violated their

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Fourth Amendment right to be free from unreasonable

seizures. Garner also claims the District Court erred when

it allowed the Government to use his prior drug conviction

as Rule 404(b) evidence. Finally, Garner contends the

evidence was insufficient to convict him of a conspiracy to

distribute heroin and cocaine. We will affirm.

L

On July 5, 2016, Pennsylvania State Trooper Kent

Ramirez stopped a car with a New York license plate for

speeding on Interstate 81 near Harrisburg, Pennsylvania.

Prior to the stop, Trooper Ramirez ran the license plate and

learned the car was owned by Enterprise Rent-A-Car,

though it lacked the typical bar code rental stickers.

The entire traffic stop was recorded on Trooper Ramirez’s

dashcam. When Ramirez approached the passenger side of

the vehicle, he smelled a strong odor of air freshener and

noticed that each vent had an air freshener clipped to it.

Ramirez identified himself, asked for the driver’s license,

and explained that the driver was going 75 miles per hour

in an area with a posted speed limit of 55. Because traffic

was noisy, Ramirez asked the driver to exit the vehicle so

they could talk on the side of the road.

The driver identified himself as Jerry Fruit and gave

Ramirez his driver’s license and rental car agreement. In

response to an inquiry from Ramirez, Fruit said he was

traveling from Manhattan to Hagerstown, Maryland to visit

his cousin for about two days. He also identified his

passenger, Tykei Garner, as his cousin. The rental

agreement listed Fruit as the authorized driver of the

vehicle, but limited to the state of New York. And the

agreement stated that it covered a rental period of June

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11-15, so it appeared to have expired twenty days before

the traffic stop. Id. When Ramirez asked about that

discrepancy, Fruit explained that he was in a car accident,

his car had been in the shop for a month, and the rental

agreement was through his insurance company.

Before he returned to his cruiser to run Fruit’s

license and contact Enterprise about the status of Fruit’s

rental contract, Trooper Ramirez asked Fruit a series of

questions about his employment, prior traffic tickets, and

criminal history. Fruit asked Ramirez what these questions

had to do with his speeding violation, and Ramirez

responded that the questions were “part of [his] traffic stop,

okay?” App. III, Traffic Stop Video at 7:26-7:28.

About six minutes after he stopped the car, Trooper

Ramirez asked the passenger (Garner) to get out of the car

so he could question him. Garner responded that Fruit was

dropping him off in Greencastle, Pennsylvania to visit his

girlfriend, but said he would return to New York the next

day to attend a court hearing.1 He also admitted he had a

suspended license for failure to pay child support. When

Ramirez continued to ask him about his criminal history,

Garner added that he had been arrested for fighting.

Garner also clarified that Fruit was not his biological

relative, though he considered him family. As with Fruit,

Ramirez asked Garner questions unrelated to the traffic

stop, including about his criminal history.

1 The District Court found that Garner said they would be returning for

court the next day while Fruit said he was going to Maryland for about

two days. That finding is clearly erroneous. When Ramirez asked

Garner if they were coming back together, Garner said: “Actually, I

have to go to court” for “child support. ... Headed back tomorrow,

hopefully.” Traffic Stop Video at 9:37-9:46 (emphasis added).

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Twelve minutes into the traffic stop, Trooper

Ramirez returned to his vehicle to check with Enterprise on

the status of the rental agreement and to verify Fruit’s and

Garner’s driving records and criminal histories. Ramirez

later explained at the suppression hearing that he had to

input their information into his computer manually, which

could take between twelve to fifteen minutes for two people.

Ramirez learned from the computer search that neither

Fruit nor Garner had any outstanding warrants, although

Fruit was on supervised release for a federal crime. He also

learned that both men had extensive criminal records,

including drug and weapons crimes. Ramirez then called

the Pennsylvania Criminal Intelligence Center, which

reported that both men had been subjects of high intensity

drug trafficking area investigations. Finally, Enterprise

confirmed that Fruit had extended the rental agreement

beyond the listed expiration date.

After learning all these things, Trooper Ramirez

resolved to ask permission to search the vehicle but waited

for backup before doing so. The backup officer, Trooper

Severin Thierwechter, arrived 37 minutes into the stop, at

about 9:29 pm. Trooper Ramirez then asked Fruit if he

could search the car, but Fruit declined. Ramirez responded

that he had “enough to believe that there may be criminal

activity going on.” Traffic Stop Video at 37:55-37:59.

Ramirez then advised Fruit that he was calling for a K-9

unit and Fruit was not free to leave. At 9:31 p.m., Ramirez

called for a K-9 unit, and Trooper John Mearkle arrived

with dog Zigi 17 minutes later—56 minutes into the stop.

Ramirez told Mearkle that he suspected criminal conduct

because Fruit and Garner gave “conflicting stories,” had

“long criminal histories,” and were “very nervous.” Traffic

Stop Video at 58:33-58:45. When Mearkle brought Zigi to

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the car, Zigi alerted twice at the passenger side door. Zigi

then entered the vehicle and alerted in the back seat and

trunk. The troopers searched the car themselves and found

bags containing 300 grams of cocaine and 261 grams of

heroin in the trunk. So they arrested Fruit and Garner.

Fruit and Garner were indicted for conspiracy to

possess with intent to distribute heroin and cocaine and

possession with intent to distribute heroin and cocaine.

They moved to suppress the evidence seized during the

traffic stop, arguing that they were seized in violation of

their Fourth Amendment rights because Trooper Ramirez

extended the traffic stop longer than was necessary to issue

the speeding ticket and lacked reasonable suspicion to

engage in the ensuing criminal investigation. The District

Court denied their motion, ruling that Trooper Ramirez had

“an escalating degree of reasonable suspicion” that justified

extending the stop. Fruit App. 26.

In 2018, Fruit pleaded guilty to both counts under a

plea agreement preserving his right to appeal the denial of

his motion to suppress. Garner was convicted of both counts

by ajury. Garner moved for judgment of acquittal and a

new trial, which the District Court denied. The Court

sentenced Fruit and Garner each to the mandatory

minimum of 120 months’ imprisonment with both counts to

run concurrently. They appealed and we consolidated their

cases for argument and disposition.

II

The District Court had jurisdiction under 18 U.S.C. §

3231 and we have jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a). We review the District Court’s factual

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findings in support of its order denying the motion to

suppress for clear error and its legal determinations de

novo. United States v. Lewis, 672 F.3d 232, 236-37 (8d Cir.

2012). Because the District Court denied the suppression

motion, we view the facts in the light most favorable to the

Government. United States v. Myers, 308 F.3d 251, 255 (3d

Cir. 2002).

III

We begin by addressing Fruit and Garner’s argument

that the District Court erred when it denied their motion to

suppress evidence. Trooper Ramirez paced Fruit driving 75

miles per hour in a 55 mile per hour zone, so there is no

dispute that the initial traffic stop was lawful. The question

here is whether it became unlawful because it was

“prolonged beyond the time reasonably required to complete

th[e] mission.” Illinois v. Caballes, 543 U.S. 405, 407 (2005).

The Supreme Court has stated that the Fourth

Amendment allows an officer to conduct unrelated

investigations that do not lengthen a roadside detention.

Arizona v. Johnson, 555 U.S. 323, 333 (2009). But if these

investigations “measurably extend the duration of the

stop,” the seizure becomes unlawful unless otherwise

supported by reasonable suspicion or probable cause. Id. at

333 (internal citation omitted). The lawful seizure “ends

when tasks tied to the traffic infraction are—or reasonably

should have been—completed.” Rodriguez v. United States,

575 U.S. 348, 354 (2015) (citing United States v. Sharpe,

470 U.S. 675, 686 (1985)).

Rodriguez is the precedent most relevant to this

appeal. There, K-9 officer Morgan Struble stopped

WE

Rodriguez for driving erratically. 575 U.S. at 351. After

Struble checked Rodriguez's license, registration, and proof

of insurance, he returned to the car, asked for the

passenger’s license, and questioned the occupants about

their travel plans. Jd. Struble ran the passenger’s license,

found no outstanding warrants or other problems, and

called for backup. He returned the documents to Rodriguez

and the passenger and completed the traffic stop by issuing

Rodriguez a written warning. But instead of sending

Rodriguez on his way, Struble asked permission to walk his

dog around the vehicle. Jd. at 352. When Rodriguez refused,

Struble ordered the occupants to exit the vehicle while he

waited for backup. After the second officer arrived, Struble

then searched the car and the dog alerted to the presence of

drugs some seven or eight minutes after he issued the

written warning to Rodriguez. Id.

The Supreme Court held that an officer may not

extend the stop to conduct a dog sniff unless there is

reasonable suspicion of criminal activity beyond the traffic

violation. Id. at 357-58. It observed that an officer’s mission

when making a traffic stop includes determining “whether

to issue a traffic ticket” and making “ordinary inquiries

incident to the traffic stop.” Id. at 355 (quoting Caballes,

543 U.S. at 408). A dog sniff aimed at “detecting evidence of

ordinary criminal wrongdoing” unrelated to the stop “is not

fairly characterized as part of the officer’s traffic mission.”

Id. at 355-56 (internal citation, quotation marks, and

alteration omitted).

A

This Court has issued two opinions in the wake of

Rodriguez: United States v. Clark, 902 F.3d 404 (8d Cir.

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2018), and United States v. Green, 897 F.3d 173 (3d Cir.

2018). In Clark, we held a lawful traffic stop was

unlawfully extended when an officer began unreasonably

questioning a driver about his criminal history after tasks

tied to the mission of the traffic stop “reasonably should

have been[] completed.” 902 F.3d at 410 (internal citation

omitted). Although the officer questioned the driver for just

20 seconds, we noted that the brevity of the questioning did

not bear on whether the questions were off-mission. Jd. at

410 n.4.

In Green, we recognized the difficulty in pinpointing

the moment when tasks tied to the traffic stop are

completed or reasonably should have been completed (what

we called the “Rodriguez moment”). We also recognized the

possibility that the Rodriguez moment occurs when an

officer no longer 10 pursues the tasks tied to the traffic stop

even though he reasonably could have continued with those

tasks. 897 F.3d at 182 (citing Rodriguez, 575 U.S. at 355)

(explaining that an officer waiting for backup due to danger

inherent in traffic stops ordinarily does not measurably

prolong the traffic stop but complexity is added to the

analysis when the officer calls for backup and then does not

wait for backup to arrive). Thus, we determined in Green

that the Rodriguez moment occurred no later than when

the officer issued the traffic citation, but “instructed Green

to wait in his car indefinitely.” 897 F.3d at 181. We also

determined that the Rodriguez moment occurred at the

earliest when the officer pursued an off-mission task by

making a phone call related to drug trafficking and was “no

longer concerned with the moving violation.” Jd. at 182.

Even assuming the earlier Rodriguez moment in Green, we

still held the seizure was constitutional because the officer

already had reasonable suspicion at that point. Id.

©)

So what tasks ordinarily are tied to the mission of a

traffic stop? They include: “checking the driver’s license,

determining whether there are outstanding warrants

against the driver, and inspecting the automobile’s

registration and proof of insurance.” Rodriguez, 575 U.S. at

355 (internal citation omitted). We have also held that some

questions relating to a driver’s travel plans ordinarily fall

within the scope of the traffic stop, as do delays caused by

safety concerns related to the stop. United States v. Givan,

320 F.3d 452, 459 (8d Cir. 2003); Clark, 902 F.3d at 410.

To lawfully extend a stop beyond when tasks tied to

its initial mission are completed or reasonably should have

been completed, an officer must have an objectively

reasonable and articulable suspicion that illegal activity

had occurred or was occurring. Rodriguez, 575 U.S. at 355;

Clark, 902 F.3d at 410. In determining whether the officer

had reasonable suspicion, we consider “the totality of the

circumstances—the whole picture.” United States v. Cortez,

449 U.S. 411, 417 (1981). This standard requires

“considerably less than proof of wrongdoing by a

preponderance of the evidence,” United States v. Sokolow,

490 U.S. 1, 7 (1989), but requires more than a “hunch.”

Terry v. Ohio, 392 U.S. 1, 27 (1968). Reasonable suspicion

depends on both the “information possessed by police and

its degree of reliability.” Alabama v. White, 496 U.S. 325,

330 (1990).

B

The District Court denied the motion to suppress in

2017, before we decided Green and Clark, so it did not

determine when the “Rodriguez moment” occurred. Instead,

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it found that Trooper Ramirez’s observations throughout

the traffic stop created an “amalgam of information . . . that

triggered [his] suspicion that a crime was afoot beyond a

moving violation.” App. 25.

Our review of the video and audio record leads us to

conclude that the earliest the Rodriguez moment occurred

was when Trooper Ramirez began asking Fruit about his

employment, family, criminal history, and other conduct

unrelated to the traffic stop. After informing Fruit that he

was speeding, Ramirez collected Fruit’s driver’s license and

rental agreement. He noted the rental agreement had

expired, but Fruit assured him he had extended the rental

term. Before he returned to his cruiser to investigate the

status of Fruit’s rental agreement, Ramirez questioned

Fruit for five minutes about his criminal history. This

questioning was not tied to the traffic stop’s mission—the

speeding violation—because it was “aimed at detecting

criminal activity more generally.” Green, 897 F.3d at 179.

But if Trooper Ramirez had reasonable suspicion when he

began questioning Fruit about his criminal history, even if

such questioning at that moment measurably extended the

traffic stop, there is no Fourth Amendment violation.

We hold Trooper Ramirez had reasonable suspicion

to extend the stop based on information he obtained during

the first few minutes of the traffic stop and before he

engaged in any unrelated investigation. So no unlawful

extension of the traffic stop ever occurred. When Ramirez

first spotted the car, he noticed it had a New York license

plate and appeared to be a rental car. After learning the

vehicle belonged to Enterprise, he noticed it did not have

the typical bar code stickers on the driver’s window or the

rear windshield. These observations aroused his suspicion

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because, in Ramirez’s experience, rental vehicles usually

had these stickers unless someone peeled them off in

violation of a rental agreement.

As Trooper Ramirez approached the vehicle, he

smelled a strong odor of air freshener and saw air

fresheners clipped on every vent, which was abnormal in

his experience. Ramirez’s questions related to the traffic

stop revealed that Fruit was traveling along I-81 between

New York City and Hagerstown, which Ramirez knew to be

a drug trafficking corridor. Ramirez also saw that the

rental agreement had expired two weeks earlier and Fruit

seemed extremely nervous throughout the stop. In their

totality, these factors are sufficient to show that Trooper

Ramirez's suspicion of illegal activity was objectively

reasonable. So he could extend the traffic stop and Fruit

and Garner were not seized in violation of the Fourth

Amendment.

IV

Fruit also argues that Trooper Ramirez exercised a

lack of diligence in his stop, rendering it tantamount to an

arrest requiring probable cause. Fruit contends that

Ramirez should not have waited for another trooper to

arrive before seeking consent or calling for a K-9 unit.

Instead, Fruit claims Ramirez should have called the K-9

unit before he asked Fruit for permission to search the

vehicle. We are unpersuaded.

Fruit correctly notes that a stop must be “sufficiently

limited in scope and duration to satisfy the conditions of an

investigative seizure.” Florida v. Royer, 460 U.S. 491, 500

(1988) (plurality opinion). But Trooper Ramirez had

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reasonable suspicion to justify further investigation before

he even questioned Fruit. And Ramirez explained he called

for backup before asking to search the vehicle because it

was starting to get dark, Fruit had a previous firearms

offense, and he is smaller than Fruit and Garner. He called

for backup for officer safety, which is consistent with the

mission of any traffic stop. See Clark, 902 F.3d at 410. As

the Supreme Court has instructed, “[t]raffic stops are

‘especially fraught with danger to police officers,’ ...so an

officer may need to take certain negligibly burdensome

precautions in order to complete his mission safely.”

Rodriguez, 575 U.S. at 356 (internal citations omitted).

In the 25 minutes between Trooper Ramirez’s return

to his vehicle and Trooper Thierwechter’s arrival, Ramirez

not only ran Fruit and Garner’s records—which he said

could take 15 minutes or more since the two lived out of

state—but also made the phone calls to Enterprise and the

Pennsylvania Criminal Intelligence Center. Ramirez called

for backup only after running Fruit and Garner’s records

and making those calls. Thierwechter arrived within ten or

fifteen minutes, so this brief delay burdened Fruit only

negligibly.

Fruit also argues that Trooper Ramirez should have

called for the K-9 unit before asking for consent to search.

But this argument fails because we have observed no lack

of diligence by officers in waiting to call for K-9 units until

after the suspect has denied consent. See United States v.

Frost, 999 F.2d 737, 742 (3d Cir. 1993). Trooper Ramirez

thus acted diligently and needed only reasonable suspicion

to conduct the dog sniff, which he had. See Green, 897 F.3d

at 179-80.

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Vv

In addition to adopting Fruit’s unsuccessful

arguments, Garner raises two additional issues particular

to his appeal. The first involves the admission of evidence

and the second relates to his motion for judgment of

acquittal. We consider each in turn.

A

At trial, the Government sought to introduce

evidence of Garner’s 2005 conviction for possession of

cocaine, his 2007 conviction for sale of cocaine, and a

pending charge from 2016 for possession with intent to

distribute marijuana. The District Court admitted Garner’s

2007 New York City cocaine trafficking conviction as

evidence of knowledge of the cocaine in the car and his

intent to distribute it. But it did not admit Garner’s drug

possession charges from 2005 and 2016, because they were

not relevant to this distribution charge.

Garner urges us to overturn our precedent that a

conviction makes “the defendant’s knowledge of the

presence of heroin more probable than it would have been

without the evidence as it indicates that he had knowledge

of [the drug trade], thus making it less likely that he was in

the wrong place at the wrong time.” Garner Br. at 20—21

(citing Givan, 320 F.3d at 461 (admitting a previous cocaine

conviction to prove knowledge and intent to distribute

heroin)). This is a nonstarter because only the Court sitting

en banc can overturn a prior precedent. Joyce v. Maersk

Line Ltd., 876 F.3d 502, 508 (8d Cir. 2017).

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Garner also argues the District Court’s admission of

his 2007 drug trafficking conviction was error under Rules

403 and 404(b) of the Federal Rules of Evidence. We review

this decision for abuse of discretion. United States v. Butch,

256 F.3d 171, 175 (8d Cir. 2001).

Rule 404(b) provides “[e]vidence of a crime, wrong, or

other act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted

in accordance with the character.” But that evidence “may

be admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” FED. R. EVID.

404(b)(1)—(2).

According to Garner, his 2007 drug trafficking

conviction dealt with different facts than those present in

this appeal and occurred too long ago to be admissible. He

notes that his first conviction involved distributing cocaine

on a street corner while this case involves distributing

cocaine and heroin in a car. He also argues that a cocaine

conviction does not prove that he knew what heroin looks

like or how it is sold. He also contends the District Court

failed under Federal Rule of Evidence 403 to properly

balance the probative value of the evidence against its

prejudicial effect.

We apply a four-part test to determine whether

prior-acts evidence is admissible under Rule 404(b). United

States v. Davis, 726 F.3d 434, 441 (3d Cir. 2013); see also

Huddleston v. United States, 485 U.S. 681, 691-92 (1988)

(discussing the four sources protecting against undue

prejudice of admitting Rule 404(b) evidence). Such evidence

is admissible if it is: (1) offered for a non-propensity

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purpose; (2) relevant to that identified purpose; (3)

sufficiently probative under Rule 408 so its probative value

is not outweighed by any inherent danger of unfair

prejudice; and (4) “accompanied by a limiting instruction, if

requested.” Davis, 726 F.3d at 441.

Garner’s 2007 conviction showed that he had

personal knowledge about how to identify cocaine, how to

traffic it, and how to package, price, and purchase it in New

York. If Garner had that knowledge, he could purchase and

package drugs in New York, before transporting them to

Hagerstown for sale. So his prior conviction showed that

Garner had the intent and knowledge to sell packaged

cocaine in his possession.

After finding the 2007 cocaine distribution charge

relevant, the District Court then balanced its probative

value with its prejudicial impact. The Court determined

that the conviction’s probative value outweighed the danger

of unfair prejudice because intent and knowledge are

critical to proving a conspiracy. Finally, the Court agreed

that it would issue a limiting instruction when requested.

As a result, the Court admitted the 2007 conviction into

evidence.

The Court admitted the 2007 cocaine trafficking

conviction to prove knowledge of cocaine and how to sell it,

not to prove intent and knowledge of packaging heroin.

Because the Court admitted the evidence only to prove

cocaine distribution, the difference between the charges on

which Garner was being tried and his prior conviction

would be that one took place in a car and the other took

place on a street corner. This difference would not affect

Garner’s knowledge of how to identify, package, and sell

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cocaine. So Garner’s argument about the cases’

dissimilarity fails. The District Court correctly applied

Huddleston and did not abuse its discretion in admitting

Garner’s cocaine distribution conviction with a limiting

instruction.

B

Finally, Garner claims the District Court erred when

it denied his Rule 29 motion for judgment of acquittal. He

notes that “[t]here was no evidence presented at-trial that

[he and Fruit] ever had any communications regarding

distribution of heroin or cocaine.” Garner Br. 30. That’s

true, but immaterial. Here, the Government relied on

circumstantial evidence to prove its case. See, e.g., United

States v. Fullmer, 584 F.3d 132, 160 (3d Cir. 2009); United

States v. McKee, 506 F.3d 225, 238 (3d Cir. 2007). Viewing

the record, as we must, in the light most favorable to the

prosecution, United States v. Smith, 294 F.3d 473, 476 (3d

Cir. 2002), ample evidence supported Garner’s conspiracy

conviction.

That evidence included that: (1) Fruit and Garner

were travelling together from New York City (a known drug

hub) to Hagerstown (a known drug destination); (2) the

rental bar code had been removed from the vehicle; (8) air

fresheners were attached to each air vent; and (4) Trooper

Ramirez pulled the car over just before 9:00 p.m., with an

hour left to reach Greencastle, yet Garner said he planned

to travel the next day the four hours back to New York for a

court hearing. The Government also elicited testimony that,

despite statements by Garner to Trooper Ramirez regarding

a court hearing involving child support, there was no record

of any such hearing scheduled in the state of New York

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involving Garner. Evidence at trial also revealed that

Garner minimized his criminal history when he told

Trooper Ramirez that he had been arrested for fighting

while neglecting to mention his extensive history of drug

possession and trafficking. A rational trier of fact could find

that Garner lied about his drug history because he knew

the car contained narcotics. Finally, the two defendants

traveled with cocaine and heroin worth over $20,000 in

their car and Garner knew about the cocaine trade.

Viewing this evidence as a whole, a rational juror

could conclude that Garner agreed with Fruit to possess

and distribute the heroin and cocaine in the vehicle. So the

District Court did not err in denying the Rule 29 motion.

KKK

The District Court did not err when it denied Fruit

and Garner’s joint motion to suppress the evidence of drug

trafficking seized during the traffic stop. Nor did the Court

err when it allowed the Government to use Garner’s 2007

drug conviction as Rule 404(b) evidence or when it found

that the Government adduced sufficient evidence to convict

Garner of conspiring with Fruit to distribute heroin and

cocaine. We will therefore affirm the judgments of

conviction and sentences.

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APPENDIX 2A

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

No. 19-1038

UNITED STATES OF AMERICA

V.

TYKEI GARNER,

Appellant

(M.D. Pa.No. 1-16-cr-00341-002)

SUR PETITION FOR REHEARING

Present: SMITH, Chief Judge, MCKEE, AMBRO,

CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR..,

SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER,

MATEY and PHIPPS, Circuit Judges.

The Petition for rehearing filed by Appellant in the

above-entitled case having been submitted to the judges

who participated in the decision of this Court and to all the

other available circuit judges of the circuit in regular active

service, and no judge who concurred in the decision having

asked for rehearing, and a majority of the judges of the

circuit in regular service not having voted for rehearing, the

petition for rehearing by the panel and the Court en banc,

is denied.

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BY THE COURT,

/s/ Thomas M. Hardiman

Circuit Judge

Dated: July 24, 2020

JK/cc: All Counsel of Record

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