concurring in part and dissenting in part.
I join the majority in all respects save one. The district court’s failure to give the voluntary intoxication instruction with *1073respect to Count II was not reversible error.
Unquestionably, the district court instructed the jury erroneously that voluntary intoxication is not a defense to an attempt charge. However, such an instructional error is harmless if the defendant’s defense was not that he was high or intoxicated. Three decisions by our sister circuits are instructive on this issue.
First, the Seventh Circuit rejected a defendant’s argument that the district court should have instructed the jury, sua sponte, that the defendant’s voluntary intoxication could negate the requisite mens rea required for aggravated sexual assault because the defendant was “too intoxicated to form the specific intent to knowingly engage in sexual intercourse, by force, with [the victim].” United States v. Boyles, 57 F.3d 535, 541 (7th Cir.1995). While the court had “no reason to doubt” that the defendant was “inebriated at the time of the assault,” it noted that the defendant “never testified that his ingestion of alcohol was to that great a degree that it impaired his judgment.” Id. at 542. The court further explained:
He has failed to present us with evidence to convince us of the merits of his argument that he was intoxicated to that degree of inebriation that he had no “power of reason” or that he was “utterly incapable” or knowing that he was forcing [the victim] to engage in intercourse with him. The defendant’s mere post-trial statement that he was so intoxicated that he was unable to form the required intent to forcibly sexually assault [the victim] is insufficient to require that the jury be instructed on voluntary intoxication. His entire defense was based on the theory that both parties willingly and knowingly engaged in consensual intercourse, a defense which is a stark contradiction to his appellate argument that he was too intoxicated to realize that he was forcing [the victim] to engage in intercourse.
Id. (internal citations omitted) (emphasis added); cf. United States v. Crowley, 236 F.3d 104, 110-11 (2d Cir.2000) (holding that where the defendants requested a voluntary intoxication instruction to a specific intent crime and the defendants’ “theory of defense” was that they were “too intoxicated to form the specific intent required to commit the crimes óf attempted sexual abuse and attempted aggravated sexual abuse,” the district court erred in not giving the instruction).
Second, in United States v. Nacotee, 159 F.3d 1073 (7th Cir.1998), the defendant argued to the district court that she was too drunk at the time of the alleged assault to form the intent necessary to sustain a charge of aiding and abetting. Id. at 1076. T.he defendant, therefore, requested that the district court give a voluntary intoxication instruction to the jury. Id. The district court refused to give the requested instruction, concluding that the defendant failed to present sufficient evidence at trial to show that she was sufficiently incapacitated to warrant the instruction. Id. On appeal, the defendant argued that the district court erred in refusing to give the requested instruction. Id.
' The court recognized that to warrant a voluntary intoxication instruction, “the defendant must produce some evidence she was drunk enough to completely lack the capacity to form the requisite intent. If she fails to produce such evidence, no instruction is warranted.” Id. In reviewing the evidence presented at trial, the court cited the defendant’s reliance on the testimony of an FBI agent that arrested her approximately two months after the assault. Id. At trial, the FBI agent paraphrased, the defendant’s statement, explaining that the defendant indicated that *1074she had been drinking and “not thinking right” the night and morning of the assault. Id. The court, however, failed to see how the FBI agent’s testimony helped the defendant, as “[t]he statement that she was ‘not thinking right’ can hardly be considered evidence of a mental impairment.” Id. Additionally, the court concluded that “[t]he fact that [the defendant] remembered hitting [one victim] and did not remember hitting [the other] at best indicates [the defendant] was drunk. Nothing in [the defendant’s] statement as reported by [the FBI agent] reveals anything about [the defendant’s] capacity to form the requisite intent.” Id. at 1076-77. Consequently, the court held that the district court did not err in finding that no voluntary intoxication instruction was warranted. Id. at 1077.
Finally, the Ninth Circuit addressed the issue of voluntary intoxication as a defense in United States v. Garcia, 21 F.3d 1117, 1994 WL 112884 (9th Cir. March 17, 1994) (unpublished). In Garcia, the defendant challenged his conviction for abusive sexual conduct, arguing that the district court erred in failing to give a jury instruction on voluntary intoxication. Id. at *3. The court initially noted that “[w]here a defendant’s requested instruction is supported by some evidence, a trial court’s failure to give it is reversible error.” Id. Applying the plain error standard of review,2 the court explained that a defendant is only entitled to a voluntary intoxication instruction when he presents evidence: “(1) that he was intoxicated, and (2) that his intoxication precluded him from forming the specific intent necessary to commit the crime.” Id. at *4 (citing United States v. Washington, 819 F.2d 221, 225 (9th Cir.1987)). Because the defendant “presented no expert testimony or any other evidence that his intoxication precluded him from forming the specific intent necessary to commit the crime of abusive sexual conduct,” the court held that the defendant “failed to present a sufficient foundation for a voluntary intoxication instruction.” Id. While the government did present the testimony of the victim, the victim’s stepfather, and the victim’s mother, indicating that the defendant was drinking on the night of the alleged offense, the court noted that the government was not presenting the evidence “for” the defendant. Id. The court observed that “the theory of [the defendant’s] defense appears to have been that the sexual contact never occurred.” Id. at *4 n. 5.
As recognized in Boyles, Crowley, Naco-tee, and Garcia, the relevant inquiry is whether Kenyon provided a sufficient evi-dentiary foundation to support a voluntary intoxication defense. If he did not, then no reversible error occurred, as Kenyon would not be harmed by the district court’s instruction to the jury that being intoxicated was not a defense to Count II.
A thorough review of the record reveals that Kenyon consistently maintained, as in Boyles and Garcia, that he did not commit the offenses at all. Unlike in Crowley, Kenyon’s “defense theory” was not that he was high or intoxicated. Instead, as in Garcia, he never asserted voluntary intoxication as a defense. The government, not Kenyon, raised the “possibility” that Kenyon might have been intoxicated or high when the offenses allegedly occurred. FBI Agent A1 Wipperfurth testified, as in Nacotee, that Kenyon admitted that it was “possible” that he committed the acts when he was high or drunk. However, Agent Wipperfurth then testified that Kenyon explained that “anybody that would do something like this would have to be sick in the head, and even if you were *1075drunk or high, he [Kenyon] would not do something like that.” Finally, like the defendant in Boyles, Kenyon never testified or offered evidence that alcohol or drugs impaired his judgment.
In conclusion, I agree that the district court erroneously advised the jury that voluntary intoxication could not be a defense to Count II — a specific intent crime. However, such error was harmless, and therefore not reversible error, because Kenyon failed to assert a defense of voluntary intoxication. The district court’s erroneous instruction did not prejudice Kenyon.
Based on the foregoing, I respectfully dissent.
. Because the defendant failed to request a voluntary intoxication instruction, the court reviewed the district court’s failure to give the instruction for plain error. Id.