1

The Honorable Roger L. Wollman stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on January 31,

2002. He has been succeeded by the Honorable David R. Hansen.

2

The Honorable Gary A. Fenner, United States District Judge for the Western

District of Missouri, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 01-2521

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United States of America,

Appellee,

v.

Orville Milk,

Appellant.

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Appeal from the United States

District Court for the 

District of South Dakota.

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Submitted: December 11, 2001

 Filed: February 26, 2002

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Before WOLLMAN,1

 Chief Judge, HANSEN, Circuit Judge, and FENNER,2 District

Judge. 

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HANSEN, Circuit Judge.

A South Dakota federal jury convicted Orville Milk of conspiracy to distribute

a controlled substance, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and possession
3 The Honorable Richard H. Battey, United States District Judge for the District

of South Dakota.

2

of marijuana with intent to distribute within 1000 feet of a public housing authority,

in violation of 21 U.S.C. §§ 860 and 841(a)(1). Milk appeals only the conviction for

possession with intent to distribute within 1000 feet of a public housing authority,

arguing that a tribal housing authority does not fall within the meaning of "public

housing authority" as used in 21 U.S.C. § 860 and that the district court erred in

failing to give lesser included offense instructions to the jury. We affirm the

judgment of the district court.3

I.

Law enforcement officials intercepted a suspicious package sent from

California to the Pine Ridge Indian Reservation in Wanblee, South Dakota. After a

drug detecting dog alerted to the package, the police obtained a warrant, opened the

package, and found 885 grams (nearly two pounds) of marijuana inside it. The police

removed most of the marijuana from the package and replaced it with oatmeal and a

tracking device that would alert the police when someone opened the parcel. After

resealing the package, the local police turned the package over to officers in the Safe

Trails Drug Enforcement Task Force ("Task Force"). The officers conducted a

controlled delivery of the parcel to the Long Creek Store on the Pine Ridge Indian

Reservation where Vine Black Feather picked up the package. The police followed

Black Feather to Orville Milk's residence.

At least two members of the Task Force were already positioned at Milk's

residence before Black Feather arrived. The Task Force was surveilling Milk's

residence because the intercepted package, which had "Orve" written on it , aroused

the officers' suspicions that Milk was involved in this drug conspiracy. Shortly after

Black Feather arrived at and entered Milk's residence, the tracking device activated,
3

indicating that someone had opened the parcel. Within forty seconds of hearing the

alert, one of the officers already positioned at the residence approached the trailer and

knocked on the door. Vine Black Feather opened the door. The authorities observed

Milk through the open door; he was standing within arm's length of the parcel which

was lying open on the kitchen table. The police placed Black Feather and Milk under

arrest and, after obtaining a warrant, searched the residence. Upon searching the

residence, the police found, among other things, a thermos containing marijuana

residue; 28 grams of marijuana inside a "Tidy Cat" cat litter bag; two stacks of United

States currency, each containing 50 one-dollar bills; two money order receipts in the

amount of $700 each from Milk to Don Bice in Gualala, California; a scale of the

type typically used to measure marijuana; a marijuana pipe; and another quantity of

marijuana.

Milk's residence was a house trailer parked on a piece of property owned by the

Oglala Sioux Tribe and managed by the Oglala Sioux Housing Authority ("OSHA").

OSHA is part of the tribe's governmental operations. OSHA's housing programs were

previously administered by the federal Department of Housing and Urban

Development ("HUD"); however, pursuant to the Native American Housing

Assistance and Self-Determination Act (NAHASDA), Pub. L. No. 104-330, 110 Stat.

4016, HUD stopped operating the programs, and OSHA assumed control of them.

At the time the events underlying this case occurred, Jasper Milk, Orville's father, was

enrolled in one of OSHA's home ownership programs and was in the process of

purchasing this property from OSHA. Jasper resided on the property, and Orville's

trailer was located between 150 and 200 feet from Jasper's residence. 

An indictment was filed in the United States District Court for the District of

South Dakota, charging Milk with the aforementioned crimes. The case proceeded

to trial. Milk requested a jury instruction both prior to trial and at the close of

evidence setting forth his definition of "public housing authority." Milk's proposed

instruction defined a "public housing authority" as follows:
4

The term "Public Housing Authority" is defined as a public housing

agency that participates in public housing. A public housing agency

means any State, County, municipality, or other governmental entity or

public body, or agency or instrumentality thereof which is authorized to

engage in or assist in the development or operation of public housing.

(Appellant's App. at 4.) The district court rejected Milk's proposed instruction and

drafted its own jury instruction. The district court's instruction defined "public

housing authority" as an "agency created by a federal, state, local or tribal

government body for the purposes of making housing available to qualified

individuals." (Id. at 6.) Milk moved for judgments of acquittal after the close of the

government's case and after the close of the evidence, arguing that because the term

"public housing authority" within the meaning of 21 U.S.C. § 860 does not include

tribal housing authorities, Milk was not guilty as a matter of law. The district court

denied the motions. Milk also proposed jury instructions for two lesser included

offenses: possession of marijuana with the intent to distribute, in violation of 21

U.S.C. § 841, and possession of marijuana, in violation of 21 U.S.C. § 844. The

district court denied Milk's request to give these two lesser included offense

instructions, the jury convicted him of the charged crimes, and he appeals. 

II.

A. The meaning of "public housing authority" as used in 21 U.S.C. § 860.

The crime of possession of marijuana with intent to distribute within 1000 feet

of a public housing authority has four essential elements: (1) the defendant possessed

marijuana, (2) the defendant knew that he was in possession of a controlled

substance, (3) the defendant intended to distribute some or all of the marijuana to

another person, and (4) the defendant possessed the marijuana within 1000 feet of a

housing facility owned by a public housing authority. See 21 U.S.C. § 860. Milk

argues that the district court erred when it denied his motions for judgment of

acquittal and when it gave the jury an instruction indicating that tribal housing
5

authorities were within the meaning of "public housing authority" as used in § 860.

Each of these alleged errors followed from the district court's interpretation of the

statute. We review questions of statutory interpretation de novo. United States v.

McIntosh, 236 F.3d 968, 972 (8th Cir.), cert. denied, 121 S. Ct. 1964 (2001).

 

 The starting point in any question of statutory interpretation is the language of

the statute itself. Id. at 971. The statute at issue in this case provides that: 

Any person who violates section 841(a)(1) of this title or section 856 of

this title by distributing, possessing with intent to distribute, or

manufacturing a controlled substance in or on, or within one thousand

feet of [a] . . . housing facility owned by a public housing authority . . .

is . . . subject to (1) twice the maximum punishment authorized by

section 841(b) of this title; and (2) at least twice any term of supervised

release authorized by section 841(b) of this title for a first offense.

21 U.S.C. § 860 (1994). Where the language of a statute "is unambiguous, the statute

should be enforced as written unless there is clear legislative intent to the contrary."

McIntosh, 236 F.3d at 972. The text of the statute indicates that the enhanced

penalties for conducting drug transactions apply whenever the transaction occurs

within 1000 feet of any housing facility owned by a "public housing authority," which

plain language in our view means only nonprivate sector, i.e., governmental, housing

authorities. The statute does not distinguish between federal, state, local, county, or

even tribal housing authorities. Because the text of the statute does not limit its

application to any specific type of public housing authority, we decline to read that

distinction into the statute. See id. at 972 ("'Courts are obligated to refrain from

embellishing statutes by inserting language that Congress has opted to omit.'")

(quoting Root v. New Liberty Hosp. Dist., 209 F.3d 1068, 1070 (8th Cir. 2000)). 

Milk advances two arguments in an attempt to circumvent the plain language

of the statute. First, Milk argues that "public housing authority" is a term of art
6

specifically defined in other parts of the Code as excluding Indian housing

authorities. Second, Milk argues that clear legislative history demonstrates that

"public housing authority" does not include Indian housing authorities. Both of his

arguments hinge upon a definition of "public housing authority" found in Title 34 of

the Code of Federal Regulations (C.F.R.) and in Title 42 of the United States Code.

 

Title 34 of the C.F.R. defines a"public housing authority" as a "public housing

agency, as defined in 42 U.S.C. § 1437a(b)(6)." 34 C.F.R. § 461.30 (c)(2) (2001).

Title 42 U.S.C. § 1437a(b)(6) defines a public housing agency as "any State, county,

municipality, or other governmental entity or public body (or agency or

instrumentality thereof) which is authorized to engage in or assist in the development

or operation of public housing." 42 U.S.C. § 1437a(b)(6)(A) (Supp. IV 1998). When

Congress amended 21 U.S.C. § 860 in 1994 to include housing facilities owned by

a public housing authority as a specially protected area under the Controlled

Substances Act, see Pub. L. No. 103-322 § 320107(1), 108 Stat. 1796, the Title 42

definition of "public housing agency" explicitly included "any Indian housing

authority." 42 U.S.C. § 1437a(b)(6) (1994), amended by, Pub. L. No. 104-330 § 501,

110 Stat. 4016. In 1998, Congress amended Title 42, deleting the phrase "[t]his

includes any Indian housing authorities" from the § 1437a definition. See Pub. L. No.

104-330 § 501(b)(1)(B), 110 Stat. 4016. The statutory history suggests that, at least

for the purposes of Title 34 of the C.F.R. and Title 42 of the Code, "public housing

agencies" do not presently include Indian housing authorities. Milk seizes upon this

current definition and argues that it is controlling in this case. 

Despite its initial appeal, we conclude that Milk's argument–that "public

housing authority" is a term of art authoritatively defined for all purposes in 42

U.S.C. § 1437a(b)(6)–overreaches. The definitions upon which Milk relies are

themselves self-limiting. The C.F.R. definition is contained in the Department of

Education's regulations and is expressly limited "[f]or the purposes of this part." 34

C.F.R. § 461.30(c)(2). The Title 42 definition of public housing agency is limited to
7

the chapter containing it. See 42 U.S.C. § 1437a(b) ("When used in this chapter:...

'Public housing agency'. . . means . . ." (emphasis added)). Moreover, Milk identifies

no authority for the proposition that the definition of a term in one Title of the United

States Code applies uniformly throughout the Code. On the contrary, the Supreme

Court has indicated that this is not the case. See United States v. Cleveland Indians

Baseball Co., 532 U.S. 200, 213 (2001) ("'The tendency to assume that a word which

appears in two or more legal rules, and so in connection with more than one purpose,

has and should have precisely the same scope in all of them . . . has all the tenacity

of original sin and must constantly be guarded against.'") (quoting Cook, "Substance"

and "Procedure" in the Conflict of Laws, 42 Yale L.J. 333, 337 (1993)). Thus, we

conclude that the definition of public housing authority as contained in Title 34 of the

C.F.R. and Title 42 of the Code does not limit the otherwise plain scope of the

meaning of "public housing authority" as used in 21 U.S.C. § 860. 

We also find no clear legislative history indicating that "public housing

authority" within the meaning of 21 U.S.C. § 860 does not include tribal housing

authorities. See McAllister, 225 F.3d 982, 986 (8th Cir. 2000) (stating that purpose

of statutory interpretation is to give effect to the intent of Congress and that text will

be enforced as written absent clear legislative intent to the contrary). History reveals

that over the last 70 years Congress has come to treat Indian housing programs

differently than general public housing programs. See Dewakuku v. Cuomo, 107 F.

Supp. 2d 1117, 1118-24 (D. Ariz. 2000) (summarizing history of Indian housing

programs), rev'd by Dewakuku v. Martinez, 271 F.3d 1031 (Fed. Cir. 2001).

Congress's most recent comprehensive legislation concerning Indian housing

programs, NAHASDA, was enacted to help achieve "economic self-sufficiency and

self-determination for tribes and their members." 25 U.S.C. § 4101(6) (Supp. IV

1998). Undoubtedly, NAHASDA was enacted to create housing programs uniquely

targeted to Indian tribes and to decouple the administration of Indian housing

programs from the administration of other non-Indian housing programs. See 25

U.S.C. § 4101 (1) and (2) (stating that Federal Government has a unique
8

responsibility to Indian tribes). The policy purposes motivating NAHASDA and the

Controlled Substances Act are separate and distinct, however; and Milk never

explains why or how the creation of housing programs uniquely tailored to tribal

governments evidences any Congressional intent to create tribal exceptions to

otherwise generally applicable drug laws. More important, Milk never identifies any

clear legislative history indicating that NAHASDA was meant to modify the scope

of 21 U.S.C. § 860. See McIntosh, 236 F.3d at 972 ("If the language is unambiguous,

the statute should be enforced as written unless there is clear legislative intent to the

contrary.") (emphasis added). Actually, NAHASDA evinces a concern with drugrelated activity that undermines Milk's argument. See, e.g., 25 U.S.C. §

4137(a)(6)(C) (providing that landlords must use leases that allow eviction if tenant

is engaged in drug-related criminal activity). We think it odd that Congress would

want to leave Indian housing authorities outside of the protection of 21 U.S.C. § 860.

We conclude that the definition of public housing authority found in Title 34

of the C.F.R. and in Title 42 of the Code is neither controlling nor persuasive. In

addition, there is no clear legislative history demonstrating that Congress wanted to

exempt tribal housing authorities from the operation of 21 U.S.C. § 860. Because the

plain language of the statute makes no distinction between one type of public housing

authority and another, we conclude that the term "public housing authority" includes

all public housing authorities–whether created by federal, state, local, or tribal

governments. Accordingly, our statutory analysis is at an end. See Connecticut

Nat'l Bank v. Germain, 503 U.S. 249, 254 (1992) ("When the words of a statute are

unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'")

(quoting Rubin v. United States, 449 U.S. 424, 430 (1981)); McAllister, 225 F.3d at

986 ("Therefore, if the intent of Congress can be clearly discerned from the statute's

language, the judicial inquiry must end.").
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B. Lesser included offenses.

Milk also argues that the district court erred by refusing to submit lesser

included offense instructions to the jury. We give deference to the district court's

formulation of jury instructions, and we review those instructions only for an abuse

of discretion. United States v. Parker, 32 F.3d 395, 400 (8th Cir. 1994). Generally,

the defendant is not entitled to any particular instruction if the given instructions,

"when viewed as a whole, correctly state the applicable law and adequately and fairly

cover the substance of the requested instruction." Id. at 400. It is beyond dispute,

however, "that the defendant is entitled to an instruction on a lesser included offense

if the evidence would permit a jury rationally to find him guilty of the lesser offense

and acquit him of the greater." Keeble v. United States, 412 U.S. 205, 208 (1973).

Specifically, a defendant is entitled to a lesser included offense instruction when: 

(1) a proper request is made; 

(2) the elements of the lesser offense are identical to part of the

elements of the greater offense; 

(3) there is some evidence which would justify conviction of a lesser

offense; 

(4) the proof on the element or elements differentiating the two

crimes is sufficiently in dispute so that the jury may consistently

find the defendant innocent of the greater and guilty of the lesser

included offense; and 

(5) there is mutuality, i.e., a charge may be demanded by either the

prosecution or defense. 

United States v. Short, 805 F.2d 335, 336 (8th Cir. 1986).

Milk's first argument–that he was entitled to an instruction for possession with

intent to distribute not within 1000 feet of a housing facility owned by a public

housing authority–has little merit. This argument merely recasts his statutory

interpretation argument–that the district court erred in denying his motions for

acquittal and in giving an instruction indicating that a tribal agency could be a public
10

housing authority within the meaning of 21 U.S.C. § 860. Under the fourth part of

the aforementioned test, there is no disputed element which could have led the jury

to convict Milk of ordinary possession with intent to distribute but not possession

with intent to distribute within 1000 feet of a housing facility owned by a public

housing authority. It is undisputed that Milk's residence was within 1000 feet of

Jasper's residence and that Jasper's residence was a housing facility owned by OSHA.

Accordingly, Milk was not entitled to have this proposed instruction submitted to the

jury. 

We find Milk's second argument–that he was entitled to an instruction for

simple possession without the intent to distribute– more troublesome than his first.

For Milk to prevail, the proof on the element differentiating the two crimes–Milk's

intent to distribute–must have been sufficiently in dispute such that the jury could

have acquitted Milk for possession with the intent to distribute within 1000 feet of

a housing facility owned by a public housing authority but convicted him of simple

possession. "If that intent is not in dispute to the degree the jury could [have]

rationally convict[ed] [Milk] of simple possession and acquit[ted] [him] of possession

with intent to distribute, [Milk is] not entitled to the instruction." Short, 805 F.2d at

337.

In support of his argument that he was entitled to an instruction for simple

possession, Milk cites United States v. Brischetto, 538 F.2d 208 (8th Cir. 1976). In

Brischetto, we held that the district court abused its discretion by failing to instruct

the jury on the lesser included offense of simple possession where the defendant was

indicted for possession with the intent to distribute. Id. at 209. In Brischetto, the

government's evidence tending to establish intent was weak. The government's only

evidence of intent to distribute was the permissible inference of intent which may

arise from the possession of a large quantity of a controlled substance and the

testimony of Brischetto's indicted accomplices who had already pleaded guilty at the

time of Brischetto's trial. Id. at 210. On the other side of the ledger, the defendant
11

testified on his own behalf that he did not intend to sell any marijuana. Id.

Brischetto's testimony was bolstered by two government agents who admitted under

cross examination that "Brischetto had not made any offers to sell marijuana in their

presence." Id. The evidence was such that a jury could have rationally convicted him

of simple possession. In fact, we noted that the "evidence in support of the simple

possession charge is stronger than that on the intent to distribute charge." Id. 

In subsequent cases, we have distinguished Brischetto and limited its scope.

We have concluded that where the intent to distribute was not sufficiently in dispute,

then the district court would not abuse its discretion in refusing to instruct the jury on

the lesser included offense of simple possession of a controlled substance where the

defendant was charged with possession with the intent to distribute. Parker, 32 F.3d

at 401; Short, 805 F.2d at 377. In Parker and Short, several facts militated in favor

of finding that the defendants were not entitled to lesser included offense instructions.

In neither case did the defendants present evidence of acquisition for personal use.

See Parker, 32 F.3d at 401 ("In the present case, however, there was no evidence of

acquisition for personal use. . .".); Short, 805 F.2d at 337 ("Brischetto is

distinguishable . . . . The district court record is devoid of any evidence to support the

defendants' contention on appeal that the marijuana was intended solely for personal

consumption."). In both cases, the government presented strong physical evidence

establishing the defendants' intent to distribute. See Parker, 32 F.3d at 401 (listing

a note enclosed in the intercepted package and documentation of money transfers as

key pieces of physical evidence establishing intent); Short, 805 F.2d at 336 (stating

fact that defendants were arrested with 279 pounds of marijuana raised strong

inference of intent to distribute). Finally, in Parker, the government presented

testimony of persons, other than indicted accomplices, who had purchased

methamphetamine from the defendants before. See Parker, 32 F.3d at 401.

We recognize that this case lies somewhere between Brischetto on the one hand

and Parker and Short on the other. Several facts lead us to conclude, however, that
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this case is more like Parker and Short, less like Brischetto, and that the district court

did not abuse its discretion in refusing to give the jury a simple possession lesser

included offense instruction. Unlike Brischetto, Milk offered no evidence to support

his theory that he possessed marijuana for personal consumption purposes only. The

dearth of evidence supporting the proposition that Milk possessed marijuana for

personal consumption purposes only is compounded by the fact that, in this case, the

government presented more compelling evidence of intent to distribute than in

Brischetto. In Brischetto the only credible evidence of intent to distribute was the

"amount of marijuana." Parker, 32 F.3d at 401. In this case the government

introduced physical evidence of intent to distribute, including: drug quantity

inconsistent with personal consumption purposes; a scale used to weigh marijuana;

two money order receipts from Milk to a California resident (the state from which this

shipment of marijuana arrived); the package containing the marijuana which had

"Orve" written on it, creating the strong inference that the package was destined for

Milk; and two stacks of U.S. currency. Cf. Parker, 32 F.3d at 401 (noting that

physical evidence of intent to distribute combined with fact that defendant presented

no evidence of possession for personal consumption purposes militated in favor of

finding that district court did not err in refusing to give the jury lesser included

offense instructions). Our conclusion is bolstered by the fact that, at trial, Milk never

really challenged the intent to distribute element of the offense as charged. Instead,

his theory of the case was to shift responsibility for the contraband to Black Feather

and to deny possession. For example, during opening statements Milk's attorney

stated that "[t]here's not going to be evidence as to who possessed those things

[referring to marijuana found in the house] . . . ." (Trial Tr. at 54.) In closing, Milk's

attorney argued that "[t]here was never any proof provided to you and never any

evidence of who owned that marijuana. . . . They didn't prove anything as to whether

Mr. Milk ever knew this stuff even existed . . ." (Id. at 238.) He continued, stating

that "Mr. Milk had no opportunity, no time, no ability in the confines of this case to

. . . effectuate possession of this package." (Id. at 240.) He continued, stating that

"Mr. Milk had not gained possession of that package." (Id. at 240.) Thus, if the jury
13

would have credited Milk's version of the events, it would have acquitted him of the

charged crimes; but, because Milk denied possession, it could not have rationally

convicted him of the lesser included offense of simple possession and acquitted him

of possession with intent to distribute. 

In similar circumstances, this court has concluded that wholly exculpatory

evidence does not entitle the defendant to have lesser included offense instructions

given to the jury. See United States v. Collins, 652 F.2d 735, 742 (8th Cir. 1981)

(holding that the district court did not err in refusing to give a lesser included

instruction for simple possession when the defendant was convicted of conspiracy to

possess with the intent to distribute and possession with the intent to distribute), cert.

denied, 455 U.S. 906 (1982). In Collins, we reasoned that where the defendant's

claim "was complete innocence," "[t]he jury either believed she had nothing to do

with the transaction or was guilty as charged. There was not a rational basis for

instructing the jury on lesser included offenses. . . ." Collins, 652 F.2d at 742.

Similarly, we conclude here that the trial court did not err in refusing to give the jury

either of the requested lesser included offense instructions. 

III.

We conclude that the district court did not err in denying Milk's motions to

acquit or in giving the jury instructions indicating that a "public housing authority"

could include tribal housing authorities. We also conclude that the district court did

not err in refusing to give the jury Milk's requested lesser included offense

instructions because the evidence presented at trial did not seriously call into question

the fact that Milk possessed marijuana with the intent to distribute it. Accordingly,

we affirm the judgment of the district court.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.