U.S. v. Milk

• Decision Date: 26 February 2002
• Docket Number: No. 01-2521.,01-2521.
• Citation: 281 F.3d 762
• Parties: UNITED STATES of America, Appellee, v. Orville MILK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

281 F.3d 762

UNITED STATES of America, Appellee, v. Orville MILK, Appellant.

No. 01-2521.

United States Court of Appeals, Eighth Circuit.

Submitted: December 11, 2001.

Filed: February 26, 2002.

COPYRIGHT MATERIAL OMITTED

John R. Murphy, Rapid City, SD, argued, for appellant.

Mark A. Vargo, Rapid City, SD, argued, for appellee.

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 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, 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:

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 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, 532 U.S. 1022, 121 S.Ct. 1964, 149 L.Ed.2d 759 (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 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...