UNITED STATES of America, Plaintiff-Appellee, v. Phillip CROSBY, Defendant-Appellant

We plumb, once again, the turbid depths of Fed.R.Evid. 403.

I

Phillip Crosby was convicted of assault resulting in serious bodily injury, in violation of 18 U.S.C. § 113 (f). There is no dispute that the victim, Dorothy Benton, was seriously injured. Less clear is who caused these injuries, largely because everyone known to be involved was in a drunken stupor at the time.

Crosby and Dorothy lived together on the Navajo reservation near the town of Leupp, Arizona. On the afternoon of February 26, 1994, they and their friend, Donald Dale, drove to the town of Winslow, Arizona, and bought a convenient 18-pack of beer. They then stopped at a nearby creek and drank it. On their way home, they bought more beer. The three of them continued drinking at Crosby’s house until approximately 6:30 or 7:00 in the evening, when Dale went home. Dale testified that Crosby and Dorothy had gotten along well that day; in fact, he had seen them holding hands and kissing at the creek.

The witnesses’ memories get blurry at this point. Dorothy testified that she and Crosby were drunk that evening. Crosby told Jesse Delmar, an investigator for the Navajo Department of Law Enforcement, that he could…