Appeal from the United States District Court for the District of Arizona. D.C. No. CR-94-00128-EHC. Earl H. Carroll, District Judge, Presiding.
Before: Joseph T. Sneed, Alex Kozinski and John T. Noonan, Jr., Circuit Judges. Opinion by Judge Kozinski.
We plumb, once again, the turbid depths of Fed. R. Evid. 403.
Phillip Crosby was convicted of assault resulting in serious bodily injury, in violation of 18 U.S.C. § 113(f).*fn1 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.*fn2 Crosby told Jesse Delmar, an investigator for the Navajo Department of Law Enforcement, that he could only remember bits and pieces of what happened that night. He did recall that, at one point, Dorothy was bleeding and that he went outside to get water for her.*fn3 When he returned to the house, the door was locked and no one was inside. He wandered around and eventually found Dorothy by the highway. The next thing he remembered was trying to carry her back but, because she was too heavy, he had to use a wheelbarrow. Upon waking up the next morning, Crosby went to get help. Dorothy was taken to the Winslow Memorial Hospital Emergency Room.
While at the hospital, Dorothy told a nurse and a police officer that she had been assaulted by her boyfriend, apparently referring to Crosby. The nurse, however, noted that Dorothy couldn't stand up by herself, was "not answering all questions appropriately" and admitted to drinking at least a 12-pack of beer the night before. Subsequently, Dorothy told a defense investigator, once on June 9 and again on July 13, 1994, that she couldn't remember who hit her. She said the same thing to the prosecutor on August 2. However, on the first day of trial, August 9, Delmar spoke with Dorothy alone and, during that conversation, she remembered that Crosby had hit her on the night of the assault. The next day, however, Dorothy again told the defense investigator that she couldn't remember who had hit her.
At trial, Dorothy admitted she had been having memory problems and that she could remember little from the night of the assault. She did recall, however, getting into an argument with Crosby and that he punched her once in the face with his fist. The next thing she remembered was waking up in the hospital. Dorothy couldn't recall how else she had received her numerous injuries.*fn4
Crosby brought a motion in limine asking the district court to allow him to introduce certain evidence relating to Dorothy's husband, Hoskie Benton. At the time of the assault, Dorothy lived with Crosby but was still married to Hoskie. The defense sought to prove the following:
1. Hoskie resided in Birdsprings, Arizona, five miles from the place where Dorothy was assaulted.
2. Approximately nine months before the assault, Hoskie had pled guilty to brutally assaulting Crosby, causing him to spend three days in the hospital. Hoskie was ...