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United States v. Polnitz

United States District Court, E.D. Wisconsin

April 17, 2019

DAVID E. POLNITZ JR., Defendant.


          Hon. Pamela Pepper, United States District Judge.


         On November 27, 2018, after a two-day trial, a jury found the defendant guilty on both counts of the indictment-being a felon in possession of a firearm and assaulting a United States Postal Worker. Dkt. No. 70. The defendant timely filed a motion for new trial. Dkt. No. 79. The motion asserts that the court improperly characterized (and excluded) certain evidence as alibi evidence. The motion also contends that if the court correctly excluded the evidence, the defendant is entitled to a new trial because he received ineffective assistance of counsel. The court will deny the motion.


         On November 21, 2017, the grand jury returned a two-count indictment charging the defendant with one count of being a felon in possession of a firearm and one count of assaulting a United States postal worker. Dkt. No. 1. The defendant filed two motions-a motion to suppress statements and a motion to suppress physical evidence. Dkt. Nos. 9, 10.

         On April 26, 2018, Magistrate Judge Duffin issued a report, recommending that this court deny in part and grant in part the motion to suppress statements, and that it deny the motion to suppress physical evidence. Dkt. No. 24. Both the government and the defendant objected. Dkt. Nos. 25, 28. On July 19, 2018, this court adopted Judge Duffin's report and recommendation in part. Dkt. No. 31. It granted the motion to suppress statements to the extent that the motion asked the court to suppress the statements the defendant made on the walk to the squad car and in the squad car. Id. The court denied that motion to the extent that it asked the court to suppress statements made during the pat-down of the defendant's porch. Id. The court denied the motion to suppress physical evidence. Id.

         Prior to trial, the parties filed a joint final pretrial report with accompanying motions in limine. Dkt. Nos. 41-43. One of the government's motions in limine asked the court to preclude the defendant from presenting alibi evidence. Dkt. No. 42 at 3. The motion stated:

To date, [the defendant] has not provided a notice of alibi pursuant to Fed. R. Crim. Pro. 12.1. The United States requests advance notice from [the defendant] of any alibi. In the absence of such notice, the United States requests the Court preclude testimony in support of an alibi for any of the charged crimes.

Id. At the November 8, 2018 final pretrial conference, the court denied the defendant's motion in limine and-without objection from defense counsel- granted the government's motions in limine. Dkt. No. 50.

         Trial began on November 26, 2018. Dkt. No. 76. As the government noted in its response to the new trial motion, the evidence indicated that while postal worker Kevin Phillips was making his rounds on June 27, 2017, the defendant's pitbull ran toward him, and the postal worker sprayed the dog with dog spray. Dkt. No. 82 at 2. The defendant's wife learned of this, and contacted the defendant, who was at work at the Salvation Army about a mile away. Id. The defendant drove his employer's white Dodge Caravan from his job toward his home, and on the way, encountered the postal worker. Id. The defendant (in the van) asked the postal worker (on foot) why the postal worker had sprayed his dog; the postal worker responded, and the defendant said he would be back. Id. The defendant then went to his home, went inside, came out and came toward the postal worker, yelling at him. Id. at 3. When the postal worker asked the defendant if the defendant was threatening him, the defendant responded, “no, this is a threat, ” and pulled out a gun, pointing it at the postal worker. Id. The defendant then went back to his home. As it turned out, the defendant was a prohibited person who could not possess a gun. Id.

         The postal worker testified on cross examination that the “confrontation” happened “[a]bout 5 o'clock in the afternoon, the evening, ” and that he was “positive” about the time. Dkt. No. 76 at p. 56, lines 17-22. He also testified that his supervisor called 911 after the incident. Id. at p. 57, lines 3-6. The government presented evidence that the postal worker's supervisor called 911 at 4:19 p.m. Id. at p. 94 at lines 24-25; 95 at lines 10-11, 22.

         When the government rested its case, the defendant made an oral motion for acquittal under Fed. R. Crim. P. 29. Id. at 138. The court denied that motion. Id. The government then alerted the court that it had not received any notice of an alibi witness from the defendant and it renewed its motion to preclude alibi evidence; the defendant responded that he wouldn't be presenting any alibi witnesses. Id. at 139.

         The next, day, during the defense's case in chief, defense counsel called the defendant's wife, Lorenzya Polnitz. Dkt. No. 77 at p. 28. She testified that the mail “usually came” in the late afternoon, “around 2:00 or 3:00.” Id. at p. 31, lines 17-19. She confirmed that the defendant came home after she called to report that the postal worker had sprayed the dog, then left the house. Id. at p. 32, lines 2-25; p. 33, lines 1-23. At that point, defense counsel began asking Ms. Polnitz about what the defendant did after his encounter with victim postal worker Kevin Phillips. Id. at p. 33, lines 12-25; p. 34, lines 1-12. The government objected to this line of questioning and, after dismissing the jury, the court heard argument from the parties. Id. at p. 35, lines 20-25; pp. 36-39. Defense counsel argued that he should be allowed to introduce a timesheet from the Salvation Army which showed when the defendant clocked into and out of his job at the Salvation Army. Id. at p. 36. Counsel argued that the time sheet was relevant the question of timing, asserting that it undermined the victim postal worker's recollection of when the encounter with the defendant occurred. Id. The court first reiterated that, as it had told defense counsel at sidebar, the defendant's wife was not the appropriate witness through which to introduce a business record from the Salvation Army. Id. at p. 36, lines 18-25. The court's bigger concern was that, despite arguing that he did not plan to present an alibi defense, defense counsel appeared to want to use the timesheet to show that the defendant could not have “been the one who pulled the gun because he was somewhere else . . . .” Id. at p. 37, lines 1-7. Defense counsel said that the timesheet wasn't

reflective of whether or not [the] encounter happened. If an encounter happened, it's indicative of when things were going on. It gives the jury a sense of who was where at what time and not to show that [the defendant] was somewhere else when this event happened, but just to show that, you know, there's a confusing set of circumstances here with the alleged victim's ability to recall a time. And this just kind of sets some concrete things as to at least when [the defendant] left work for the day, what time that was.

Id. at p. 37, lines 12-21. After hearing brief argument from the government, the court concluded that the defendant now was trying to present an alibi defense for which he had not given notice; the court concluded that it had ruled twice on the issue, and that it was not going to allow the defense to question the defendant's wife about the Salvation Army timesheet. Id. at p. 38, lines 11-13. Defense counsel nonetheless stated,

Judge, I guess I just want to for the record make one thing, one more point; that is, that the victim says that this happened. His testimony was this happened at about 5:00 p.m. He's certain of that. The fact that [the defendant] left work for the day at 4:28 is not an alibi, doesn't provide an alibi as to when, you know, that he was somewhere else when this crime happened.

Id. at p. 38, lines 14-20. The court responded:

What you're saying it could impeach [the postal worker's] recollection as to timing. You can also do that. You've already asked Ms. Polnitz from her own recollection a couple of questions about what she recalls in terms of when her husband came home, how long it took him to get there, and when he left. That is going to have to suffice. I understand it can also be used for impeachment.
Again, she's not the right witness to do it through and in this instance showing who was where and when I agree with the Government is an alibi where there was no ...

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