           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0034P (6th Cir.)
                    File Name: 00a0034p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                                 ;
                                  
 UNITED STATES OF AMERICA,
                                  
          Plaintiff-Appellee,
                                  
                                  
                                       Nos. 97-6383/
            v.
                                  
                                       6384/6385
                                   >
                                  
                                  
 PHILLIP CHARLES GREEN

                                  
 (97-6383); SANTOS NEGRON
                                  
 (97-6384); LARRY WADE
                                  
 WALTERS, JR. (97-6385),
       Defendants-Appellants. 
                                 1
       Appeal from the United States District Court
    for the Western District of Tennessee at Memphis.
      No. 96-20098—Jerome Turner, District Judge.
                  Argued: December 14, 1999
              Decided and Filed: January 21, 2000
  Before: NELSON and DAUGHTREY, Circuit  Judges;
            BERTELSMAN, District Judge.*




    *
      The Honorable William O. Bertelsman, United States District Judge
for the Eastern District of Kentucky, sitting by designation.

                                  1
2    United States v.               Nos. 97-6383/6384/6385
     Green, et al.

                    _________________
                         COUNSEL
ARGUED: Robert C. Irby, Memphis, Tennessee, Randall P.
Salky, THE LAW OFFICE OF RANDALL SALKY,
Memphis, Tennessee, William F. Travis, Southaven,
Mississippi, for Appellants. Jennifer Lawrence Webber,
OFFICE OF THE U.S. ATTORNEY, Memphis, Tennessee,
for Appellee. ON BRIEF: Robert C. Irby, Memphis,
Tennessee, Randall P. Salky, THE LAW OFFICE OF
RANDALL SALKY, Memphis, Tennessee, William F.
Travis, Southaven, Mississippi, for Appellants. Jennifer
Lawrence Webber, OFFICE OF THE U.S. ATTORNEY,
Memphis, Tennessee, for Appellee.
                    _________________
                        OPINION
                    _________________
  BERTELSMAN, District Judge. The appellants, Phillip
Charles Green, Santos Negron, and Larry Wade Walters, Jr.,
appeal from their respective convictions and sentences
imposed for their part in a prison riot. Walters appeals an
enhanced sentence pursuant to U.S.S.G § 3B1.1. Green and
Negron appeal their convictions as participants in the riot and
maintain they are not guilty of causing or assisting a riot
under 18 U.S.C. § 1792.
  These cases arise from an inmate disturbance which erupted
at the Federal Correctional Institution in Memphis,
Tennessee, on October 20, 1995, at approximately 12:15 p.m.
The disturbance, which began as a protest by inmates based
on the alleged disparity in sentences for crack cocaine and
powdered cocaine offenders, quickly grew into a riot.
Inmates started fires in housing units and other buildings,
broke windows, and destroyed government property. Among
the property destroyed was that of Unicor, a company that
used inmate labor to manufacture electronic cables for the
Nos. 97-6383/6384/6385                       United States v.        3
                                               Green, et al.

Defense Department. The total cost of the rioting to the
government was $3,445,165.
   During the course of the riot, over 100 inmates were treated
for smoke inhalation. Seven inmates were transported to
outside hospitals for treatment. Four prison staff members,
along with a firefighter, were transported to area hospitals for
treatment for smoke inhalation.
  On January 31, 1997, a federal grand jury sitting in the
Western District of Tennessee returned             an eight-count
indictment charging Brian Torres,1 Walters, Negron, and
Green with aiding and abetting, instigating, conniving,
willfully attempting to cause, and assisting a riot in a federal
prison in violation of 18 U.S.C. § 1792, and willfully and
maliciously destroying government property in violation of 18
U.S.C. § 1361. Negron was additionally charged with the
setting of a fire within the special territorial jurisdiction of the
United States in violation of 18 U.S.C. § 81.
   Appellants received a jury trial in this matter commencing
on April 29, 1997. The jury returned a verdict on May 14,
1997. Walters was convicted on one count of rioting in a
federal prison and three counts of destruction of government
property. Negron was convicted on one count of rioting in a
federal prison and one count of destruction of government
property. He was acquitted on the count for setting fire in the
territorial jurisdiction of the United States. Torres was
convicted on one count of rioting in a federal prison and one
count of destruction of government property. Green was
convicted on one count of rioting in a federal prison and was
acquitted on one count of destruction of government property.
  Based on his conviction and criminal background, Walters
was sentenced to ninety-two months of imprisonment to run
consecutive to his current term of imprisonment and three

    1
      Torres was convicted at trial with the other defendants. However,
he did not appeal his conviction and/or sentence.
4        United States v.                   Nos. 97-6383/6384/6385   Nos. 97-6383/6384/6385                  United States v.     9
         Green, et al.                                                                                         Green, et al.

years of supervised release. Negron received thirty-seven            verdict. When a criminal defendant argues a “material”
months of imprisonment to run consecutive to his current             variance in the context of a bill of particulars, he must
term of imprisonment and three years of supervised release.          demonstrate that the variance prejudiced “substantial rights”
Green received eighty-four months of imprisonment to run             and that the variance took him by surprise or placed him at
consecutive to his current term of imprisonment and three            risk of double jeopardy. United States v. Hart, 70 F.3d 854
years of supervised release. Walters, Green and Negron each          (6th Cir. 1995), cert. denied, 517 U.S. 1127, 116 S.Ct. 1368,
filed a timely notice of appeal.                                     134 L.Ed.2d 534 (1996) (citations omitted). “[A] variance is
                                                                     immaterial if it does not impair the defendant’s ability to
  The only argument Walters presents on appeal is that the           defend himself through failing to identify the nature of the
district court erred in enhancing his base offense level by four     charge.” Id. (citing United States v. Robinson, 974 F.2d, 575,
levels for being an organizer2or leader of criminal activity         578 (5th Cir. 1992)).
pursuant to U.S.S.G § 3B1.1. This determination involves
a question of fact and is reviewed for clear error. United             The evidence in this case clearly supports the conclusion
States v. Layne, 192 F.3d 556, 578 (6th Cir. 1999) (citing           that Green had an active role in the riot sufficient to support
United States v. Williams, 962 F.2d 1218, 1227 (6th Cir.),           his conviction. Furthermore, any variance between the
cert. denied, 506 U.S. 892, 113 S.Ct. 264, 121 L.Ed.2d 194           evidence and the bill of particulars is immaterial, and in no
(1992)). “A finding is clearly erroneous if, after studying the      way was Green taken by surprise or placed at any risk of
entire record, [the court is] ‘left with the definite and firm       double jeopardy in this case. Thus, this argument is without
conviction that a mistake has been committed.’” Id. (quoting         merit.
United States v. Perez, 871 F.2d 45, 48 (6th Cir.), cert.
denied, 492 U.S. 910, 109 S.Ct. 3227, 106 L.Ed.2d 576                 Therefore, finding no error in this matter, we hereby
(1989)).                                                             AFFIRM the judgment of the trial court in all respects.
  In making a determination regarding enhancement under
U.S.S.G § 3B1.1, “a district court should consider such
factors as the exercise of decisionmaking authority, the nature
of the defendant’s participation in the commission of the
offense, the recruitment of accomplices, the degree of
participation in planning or organizing the offense, and the


    2
        U.S.S.G § 3B1.1 provides:
        Based on the defendant’s role in the offense, increase the
    offense level as follows:
                (a) If the defendant was an organizer or leader of
           a criminal activity that involved five or more
           participants or was otherwise extensive, increase by 4
           levels.
8     United States v.               Nos. 97-6383/6384/6385         Nos. 97-6383/6384/6385                  United States v.     5
      Green, et al.                                                                                           Green, et al.

  Likewise, in the present case, to interpret the statute as        degree of control exercised over others.” Wright v. United
Green and Negron ask this court to would require a finding          States, 182 F.3d 458, 466-67 (6th Cir. 1999) (citing U.S.S.G
that they engaged in no criminal activity although it is clear      § 3B1.1 cmt. n. 4). These factors are only designed to provide
they took part in the prison riot.                                  guidance to the sentencing court, and there is no requirement
                                                                    that each factor be met. See United States v. Ospina, 18 F.3d
  Negron was one of a group of inmates who partially                1332, 1337 (6th Cir.), cert. denied, 512 U.S. 1226, 114 S.Ct.
destroyed cable assemblies that were in the process of being        2721, 129 L.Ed.2d 846 (1994)).
built, and he threw a chair at a window. Green also broke
glass and threw chairs. Obviously Congress did not intend             The government bears the burden of demonstrating by a
that such criminal activity go unpunished. Such a result            preponderance of the evidence that an enhancement is
would be absurd and do nothing to deter future riots.               justified. See United States v. Feinman, 930 F.2d 495 (6th
                                                                    Cir. 1991). Establishing that Walters recruited others to join
  Therefore, we conclude the better reasoned interpretation of      the riot is sufficient to justify an upward departure. See
the word “assists” as used in 18 U.S.C. § 1792 is that of the       United States v. Garcia, 20 F.3d 670, 674 (6th Cir. 1994),
Third and Fifth Circuits.                                           cert. denied, 513 U.S. 1159, 115 S.Ct. 1120, 130 L.Ed.2d
                                                                    1083 (1995) (defendant’s recruitment of accomplices was a
   Thus, we hold that the fair and ordinary meaning of 18           factor justifying an enhanced sentence under U.S.S.G
U.S.C. § 1792 includes the participation in a prison riot and       § 3B1.1).
is prohibited and punishable as a crime. Hence, we affirm the
district court.                                                        The record contains the trial testimony of several witnesses
                                                                    that Walters’s role in the riot was sufficient to justify an
  Appellant Green advances several other arguments which            enhancement. One witness testified that Walters encouraged
can be disposed of in a summary manner. He alleges that the         other inmates to join the riot and encouraged violence. (Jesse
district court erred in curtailing his counsel’s cross              Younger at 51/1/97 TR 294). Additionally, Walters “stated
examination of government witnesses. Green, however, fails          for everybody to join him before the staff did a count.” (Id.
to demonstrate how he was prejudiced by the trial court’s           at 298).
moving the questioning along.
                                                                      Another witness testified that Walters yelled for the other
  Moreover, the standard of review of a trial court’s ruling on     inmates to “‘Take [a staff member’s] [expletive deleted] keys,
the admissibility of testimony and other evidence is for an         take his [expletive deleted] radio, we have come to get our
abuse of discretion. United States v. Bonds, 12 F.3d 540, 554       people, let our people go’, or words to that effect.” (Archie
(6th Cir. 1993). Even in the case of a finding of abuse of          Wiggins at 5/1/97 TR 360).
discretion, a new trial is not required unless substantial rights
are affected, as an abuse of discretion is otherwise harmless          A third witness testified that Walters also instructed the
error. We find that the trial court did not abuse its discretion    inmates to get the staff’s video cameras. (Andrew Danner at
in limiting some of the questioning on cross examination.           5/2/97 TR 580-81). A final witness testified that Walters was
Hence, we reject Green’s argument on this issue.                    yelling: “‘[W]e (the inmates) can go in there and take the
                                                                    [other inmates] out[.] You all can’t stop us.’” (Mike Wallace
  Green also argues that the government’s testimony did not         at 5/2/97 TR 622). Walters also encouraged others to join the
conform to the bill of particulars enough to support a guilty
6     United States v.               Nos. 97-6383/6384/6385         Nos. 97-6383/6384/6385                   United States v.        7
      Green, et al.                                                                                            Green, et al.

riot by shouting for the inmates in the Delta Housing Unit to         Thereafter, the Fifth Circuit reviewed the same issue in
“mount up.”                                                         United States v. Bryant, 563 F.2d 1227, 1228-29 (5th Cir.
                                                                    1977), and noted the split between the Third and Tenth
  This evidence is more than sufficient to establish Walters’s      Circuits. The Fifth Circuit agreed with the Third Circuit
leadership role in the riot by a preponderance of the evidence.     holding that “assists” as used in the statute means “willful
He clearly recruited other inmates to join in the riot and          participation.” The court rejected the defendants’ argument
directed them what to do. Thus, the district court did not err      that the statute only prohibits instigating, causing, or
in enhancing Walters’s sentence under U.S.S.G § 3B1.1.              conspiring to cause a riot. It concluded that interpreting the
                                                                    language in such a manner would mean that participation in
   The next issue involves Green and Negron’s appeal                a prison riot would no longer be a crime. Id. at 1230. The
regarding the interpretation of 18 U.S.C. § 1792, which             court stated that “[it] could not believe that Congress intended
provides that “[w]hoever instigates, connives, willfully            any such result.” Id.
attempts to cause, assists, or conspires to cause any mutiny or
riot, at any Federal penal, detention, or correctional facility,      We find the following language from Bryant particularly
shall be imprisoned not more than ten years or fined under          persuasive.
this title, or both.”
                                                                      The defendants argue that the word “assists” in the
  Negron and Green argue on appeal they were only mere                statute must be construed in context with the surrounding
participants in the prison riot and that such does not constitute     words in the statute, and when this is done it is clear that
a violation under 18 U.S.C. § 1792. This is an issue of first         it means “to instigate, cause or conspire to cause” a
impression in this circuit, although other circuits have spoken       prison riot or mutiny, and does not prohibit mere
on the issue with differing voices. Therefore, there exists a         participation therein. We do not agree. The court was
need for clarity in this circuit regarding the interpretation of      correct in its decision in Farries, supra, when it said:
18 U.S.C. § 1792. Since this matter involves statutory
construction, it is reviewed de novo by this court. See United          The word “assists” must be given its plain meaning.
States v. Kassouf, 144 F.3d 952, 955 (6th Cir. 1998).                   One who wilfully participates in a mutiny or riot
                                                                        plainly “assists . . . any mutiny or riot” and thereby
   In United States v. Rodgers, 419 F.2d 1315, 1317 (10th Cir.          violates the statute.
1969), the Tenth Circuit held that “[t]he plain words of 18
U.S.C. § 1792 limit the offense to the instigation of or              Furthermore, Blacks Law Dictionary, Revised Fourth
connivance to cause a riot or mutiny and does not include             Edition, 1968, defines “assists” as follows:
participation therein.” However, the Third Circuit openly
rejected the Tenth Circuit’s holding in Rodgers in United               To help, aid, succor, lend countenance or
States v. Farries, 459 F.2d 1057, 1063-64 (3rd Cir.), cert.             encouragement to; participate in as an auxiliary---
denied, 409 U.S. 888, 93 S.Ct. 143, 34 L.Ed.2d 145(1972)                To contribute effort —.
The Third Circuit held that “the word ‘assists’ must be given
its plain meaning. One who willfully participates in a mutiny       Id., 563 F.2d at 1229-30 (internal citations and quotations
or riot plainly ‘assists . . . any mutiny or riot’ and thereby      omitted) (emphasis supplied).
violates the statute.” Id. at 1064.
