United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 01-2521
                                ________________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       District of South Dakota.
Orville Milk,                             *
                                          *
             Appellant.                   *

                                ________________

                                Submitted: December 11, 2001
                                    Filed: February 26, 2002
                                ________________

Before WOLLMAN,1 Chief Judge, HANSEN, Circuit Judge, and FENNER,2 District
      Judge.
                          ________________

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

      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.
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
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
                                          2
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:

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      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

                                          4
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, 

, 972 (8th Cir.), cert. denied, 

(2001).

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

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."

. 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 

("'Courts are obligated to refrain from
embellishing statutes by inserting language that Congress has opted to omit.'")
(quoting Root v. New Liberty Hosp. Dist., 

, 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

                                           5
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

                                          6
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., 

, 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, 

, 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, 

(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

                                            7
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 

("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 drug-
related 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, 

, 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, 

, 430 (1981)); 

("Therefore, if the intent of Congress can be clearly discerned from the statute's
language, the judicial inquiry must end.").




                                           8
        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, 

, 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." 

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, 

, 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, 

, 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


                                           9
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." 

.

       In support of his argument that he was entitled to an instruction for simple
possession, Milk cites United States v. Brischetto, 

(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. 

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. 

On the other side of the ledger, the defendant

                                           10
testified on his own behalf that he did not intend to sell any marijuana. 

was bolstered by two government agents who admitted under
cross examination that "Brischetto had not made any offers to sell marijuana in their
presence." 

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." 

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. 

; 

. 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 

("In the present case, however, there was no evidence of
acquisition for personal use. . .".); 

("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 

(listing
a note enclosed in the intercepted package and documentation of money transfers as
key pieces of physical evidence establishing intent); 

(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 

.

      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

                                           11
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." 

. 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. 

(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

                                           12
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, 

, 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, 

(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. . . ." 

.
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.




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