
    UNITED STATES of America, Plaintiff-Appellee, v. Christopher HALLMARK, Defendant-Appellant.
    No. 03-10648.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted July 16, 2004.
    Decided Aug. 20, 2004.
    Paul L. Pugliese, Esq., Ronald C. Ra-chow, Office of the U.S. Attorney, Reno, NV, for Plaintiff-Appellee.
    Michael K. Powell, Esq., Cynthia Hahn, Esq., Federal Public Defender’s Office, Reno, NV, for Defendant-Appellant.
    Before: FERNANDEZ and PAEZ, Circuit Judges, and WEINER, Senior District Judge.
    
    
      
       Honorable Charles R. Weiner, Senior United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
    
   MEMORANDUM

There was no plain error in the district court’s failure to give a diminished capacity instruction regarding either the attempt charge or the aiding and abetting charge. The diminished capacity defense of voluntary intoxication was waived because it conflicted with the theory of defense which counsel sought to present, namely that Hallmark abandoned the scheme to firebomb the restaurant.

There was also no error in the failure to instruct on the theory of abandonment as a defense to the attempt charge. As the evidence amply demonstrated intent and substantial steps toward commission of the offense, it was legally irrelevant to the attempt charge that Hallmark allegedly dropped the incendiary device, rather than throwing it through the broken window. By that point, the attempt crime was complete. The jury instruction that the district court gave, which set forth the elements of the two offenses, was sufficient.

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
     