*The Honorable William O. Bertelsman, United States District Judgefor the Eastern District of Kentucky, sitting by designation.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0034P (6th Cir.)File Name: 00a0034p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________UNITEDSTATES OFAMERICA,Plaintiff-Appellee,v.PHILLIPCHARLESGREEN(97-6383); SANTOSNEGRON(97-6384); LARRYWADEWALTERS,JR. (97-6385),Defendants-Appellants.;>1Nos. 97-6383/6384/6385Appeal from the United States District Courtfor the Western District of Tennessee at Memphis.No. 96-20098—Jerome Turner, District Judge.Argued: December 14, 1999Decided and Filed: January 21, 2000Before: NELSON and DAUGHTREY, Circuit Judges;BERTELSMAN, District Judge.*2United States v.Green, et al.Nos. 97-6383/6384/6385_________________COUNSELARGUED: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 OFRANDALL SALKY, Memphis, Tennessee, William F.Travis, Southaven, Mississippi, for Appellants. JenniferLawrence Webber, OFFICE OF THE U.S. ATTORNEY,Memphis, Tennessee, for Appellee._________________OPINION_________________BERTELSMAN, District Judge. The appellants, PhillipCharles Green, Santos Negron, and Larry Wade Walters, Jr.,appeal from their respective convictions and sentencesimposed for their part in a prison riot. Walters appeals anenhanced sentence pursuant to U.S.S.G § 3B1.1. Green andNegron appeal their convictions as participants in the riot andmaintain they are not guilty of causing or assisting a riotunder 18 U.S.C. § 1792.These cases arise from an inmate disturbance which eruptedat 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 basedon the alleged disparity in sentences for crack cocaine andpowdered cocaine offenders, quickly grew into a riot.Inmates started fires in housing units and other buildings,broke windows, and destroyed government property. Amongthe property destroyed was that of Unicor, a company thatused inmate labor to manufacture electronic cables for theNos. 97-6383/6384/6385United States v.Green, et al.31Torres was convicted at trial with the other defendants. However,he did not appeal his conviction and/or sentence.Defense Department. The total cost of the rioting to thegovernment was $3,445,165.During the course of the riot, over 100 inmates were treatedfor smoke inhalation. Seven inmates were transported tooutside hospitals for treatment. Four prison staff members,along with a firefighter, were transported to area hospitals fortreatment for smoke inhalation.On January 31, 1997, a federal grand jury sitting in theWestern District of Tennessee returned an eight-countindictment charging Brian Torres,1Walters, Negron, andGreen with aiding and abetting, instigating, conniving,willfully attempting to cause, and assisting a riot in a federalprison in violation of 18 U.S.C. § 1792, and willfully andmaliciously destroying government property in violation of 18U.S.C. § 1361. Negron was additionally charged with thesetting of a fire within the special territorial jurisdiction of theUnited States in violation of 18 U.S.C. § 81.Appellants received a jury trial in this matter commencingon April 29, 1997. The jury returned a verdict on May 14,1997. Walters was convicted on one count of rioting in afederal prison and three counts of destruction of governmentproperty. Negron was convicted on one count of rioting in afederal prison and one count of destruction of governmentproperty. He was acquitted on the count for setting fire in theterritorial jurisdiction of the United States. Torres wasconvicted on one count of rioting in a federal prison and onecount of destruction of government property. Green wasconvicted on one count of rioting in a federal prison and wasacquitted on one count of destruction of government property.Based on his conviction and criminal background, Walterswas sentenced to ninety-two months of imprisonment to runconsecutive to his current term of imprisonment and three4United States v.Green, et al.Nos. 97-6383/6384/63852U.S.S.G § 3B1.1 provides:Based on the defendant’s role in the offense, increase theoffense level as follows:(a) If the defendant was an organizer or leader ofa criminal activity that involved five or moreparticipants or was otherwise extensive, increase by4levels.years of supervised release. Negron received thirty-sevenmonths of imprisonment to run consecutive to his currentterm of imprisonment and three years of supervised release.Green received eighty-four months of imprisonment to runconsecutive to his current term of imprisonment and threeyears of supervised release. Walters, Green and Negron eachfiled a timely notice of appeal.The only argument Walters presents on appeal is that thedistrict court erred in enhancing his base offense level by fourlevels for being an organizer or leader of criminal activitypursuant to U.S.S.G § 3B1.1.2This determination involvesa question of fact and is reviewed for clear error.UnitedStates v. Layne, 192 F.3d 556, 578 (6th Cir. 1999) (citingUnited States v. Williams, 962 F.2d 1218, 1227 (6th Cir.),cert. denied, 506 U.S. 892, 113 S.Ct. 264, 121 L.Ed.2d 194(1992)). “A finding is clearly erroneous if, after studying theentire record, [the court is] ‘left with the definite and firmconviction that a mistake has been committed.’”Id.(quotingUnited 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(1989)).In making a determination regarding enhancement underU.S.S.G § 3B1.1, “a district court should consider suchfactors as the exercise of decisionmaking authority, the natureof the defendant’s participation in the commission of theoffense, the recruitment of accomplices, the degree ofparticipation in planning or organizing the offense, and theNos. 97-6383/6384/6385United States v.Green, et al.9verdict. When a criminal defendant argues a “material”variance in the context of a bill of particulars, he mustdemonstrate that the variance prejudiced “substantial rights”and that the variance took him by surprise or placed him atrisk of double jeopardy.United States v. Hart, 70 F.3d 854(6th Cir. 1995),cert. denied, 517 U.S. 1127, 116 S.Ct. 1368,134 L.Ed.2d 534 (1996) (citations omitted). “[A] variance isimmaterial if it does not impair the defendant’s ability todefend himself through failing to identify the nature of thecharge.”Id. (citingUnited States v. Robinson, 974 F.2d, 575,578 (5th Cir. 1992)).The evidence in this case clearly supports the conclusionthat Green had an active role in the riot sufficient to supporthis conviction. Furthermore, any variance between theevidence and the bill of particulars is immaterial, and in noway was Green taken by surprise or placed at any risk ofdouble jeopardy in this case. Thus, this argument is withoutmerit.Therefore, finding no error in this matter, we herebyAFFIRMthe judgment of the trial court in all respects.8United States v.Green, et al.Nos. 97-6383/6384/6385Likewise, in the present case, to interpret the statute asGreen and Negron ask this court to would require a findingthat they engaged in no criminal activity although it is clearthey took part in the prison riot.Negron was one of a group of inmates who partiallydestroyed cable assemblies that were in the process of beingbuilt, and he threw a chair at a window. Green also brokeglass and threw chairs. Obviously Congress did not intendthat such criminal activity go unpunished. Such a resultwould be absurd and do nothing to deter future riots.Therefore, we conclude the better reasoned interpretation ofthe word “assists” as used in 18 U.S.C. § 1792 is that of theThird and Fifth Circuits.Thus, we hold that the fair and ordinary meaning of 18U.S.C. § 1792 includes the participation in a prison riot andis prohibited and punishable as a crime. Hence, we affirm thedistrict court.Appellant Green advances several other arguments whichcan be disposed of in a summary manner. He alleges that thedistrict court erred in curtailing his counsel’s crossexamination of government witnesses. Green, however, failsto demonstrate how he was prejudiced by the trial court’smoving the questioning along.Moreover, the standard of review of a trial court’s ruling onthe admissibility of testimony and other evidence is for anabuse of discretion.United States v. Bonds, 12 F.3d 540, 554(6th Cir. 1993). Even in the case of a finding of abuse ofdiscretion, a new trial is not required unless substantial rightsare affected, as an abuse of discretion is otherwise harmlesserror. We find that the trial court did not abuse its discretionin limiting some of the questioning on cross examination.Hence, we reject Green’s argument on this issue.Green also argues that the government’s testimony did notconform to the bill of particulars enough to support a guiltyNos. 97-6383/6384/6385United States v.Green, et al.5degree of control exercised over others.”Wright v. UnitedStates, 182 F.3d 458, 466-67 (6th Cir. 1999) (citing U.S.S.G§ 3B1.1 cmt. n. 4). These factors are only designed to provideguidance to the sentencing court, and there is no requirementthat each factor be met.See United States v. Ospina, 18 F.3d1332, 1337 (6th Cir.),cert. denied, 512 U.S. 1226, 114 S.Ct.2721, 129 L.Ed.2d 846 (1994)).The government bears the burden of demonstrating by apreponderance of the evidence that an enhancement isjustified.See United States v. Feinman, 930 F.2d 495 (6thCir. 1991). Establishing that Walters recruited others to jointhe riot is sufficient to justify an upward departure.SeeUnited States v. Garcia, 20 F.3d 670, 674 (6th Cir. 1994),cert. denied, 513 U.S. 1159, 115 S.Ct. 1120, 130 L.Ed.2d1083 (1995) (defendant’s recruitment of accomplices was afactor justifying an enhanced sentence under U.S.S.G§ 3B1.1).The record contains the trial testimony of several witnessesthat Walters’s role in the riot was sufficient to justify anenhancement. One witness testified that Walters encouragedother inmates to join the riot and encouraged violence. (JesseYounger at 51/1/97 TR 294). Additionally, Walters “statedfor everybody to join him before the staff did a count.” (Id.at 298).Another witness testified that Walters yelled for the otherinmates to “‘Take [a staff member’s] [expletive deleted] keys,take his [expletive deleted] radio, we have come to get ourpeople, let our people go’, or words to that effect.” (ArchieWiggins at 5/1/97 TR 360).A third witness testified that Walters also instructed theinmates to get the staff’s video cameras. (Andrew Danner at5/2/97 TR 580-81). A final witness testified that Walters wasyelling: “‘[W]e (the inmates) can go in there and take the[other inmates] out[.] You all can’t stop us.’” (Mike Wallaceat 5/2/97 TR 622). Walters also encouraged others to join the6United States v.Green, et al.Nos. 97-6383/6384/6385riot by shouting for the inmates in the Delta Housing Unit to“mount up.”This evidence is more than sufficient to establish Walters’sleadership role in the riot by a preponderance of the evidence.He clearly recruited other inmates to join in the riot anddirected them what to do. Thus, the district court did not errin enhancing Walters’s sentence under U.S.S.G § 3B1.1.The next issue involves Green and Negron’s appealregarding the interpretation of 18 U.S.C. § 1792, whichprovides that “[w]hoever instigates, connives, willfullyattempts to cause, assists, or conspires to cause any mutiny orriot, at any Federal penal, detention, or correctional facility,shall be imprisoned not more than ten years or fined underthis title, or both.”Negron and Green argue on appeal they were only mereparticipants in the prison riot and that such does not constitutea violation under 18 U.S.C. § 1792. This is an issue of firstimpression in this circuit, although other circuits have spokenon the issue with differing voices. Therefore, there exists aneed for clarity in this circuit regarding the interpretation of18 U.S.C. § 1792. Since this matter involves statutoryconstruction, it is reviewedde novoby this court.See UnitedStates v. Kassouf, 144 F.3d 952, 955 (6th Cir. 1998).InUnited States v. Rodgers, 419 F.2d 1315, 1317 (10th Cir.1969), the Tenth Circuit held that “[t]he plain words of 18U.S.C. § 1792 limit the offense to the instigation of orconnivance to cause a riot or mutiny and does not includeparticipation therein.” However, the Third Circuit openlyrejected the Tenth Circuit’s holding inRodgersinUnitedStates v. Farries, 459 F.2d 1057, 1063-64 (3rd Cir.),cert.denied, 409 U.S. 888, 93 S.Ct. 143, 34 L.Ed.2d 145(1972)The Third Circuit held that “the word ‘assists’ must be givenits plain meaning. One who willfully participates in a mutinyor riot plainly ‘assists . . . any mutiny or riot’ and therebyviolates the statute.”Id.at 1064.Nos. 97-6383/6384/6385United States v.Green, et al.7Thereafter, the Fifth Circuit reviewed the same issue inUnited States v. Bryant, 563 F.2d 1227, 1228-29 (5th Cir.1977), and noted the split between the Third and TenthCircuits. The Fifth Circuit agreed with the Third Circuitholding that “assists” as used in the statute means “willfulparticipation.” The court rejected the defendants’ argumentthat the statute only prohibits instigating, causing, orconspiring to cause a riot. It concluded that interpreting thelanguage in such a manner would mean that participation ina prison riot would no longer be a crime.Id.at 1230. Thecourt stated that “[it] could not believe that Congress intendedany such result.”Id.We find the following language fromBryantparticularlypersuasive.The defendants argue that the word “assists” in thestatute must be construed in context with the surroundingwords in the statute, and when this is done it is clear thatit means “to instigate, cause or conspire to cause” aprison riot or mutiny, and does not prohibit mereparticipation therein. We do not agree. The court wascorrect in its decision inFarries, supra, when it said:The word “assists” must be given its plain meaning.One who wilfully participates in a mutiny or riotplainly “assists . . . any mutiny or riot” and therebyviolates the statute.Furthermore,Blacks Law Dictionary, Revised FourthEdition, 1968, defines “assists” as follows:Tohelp,aid, succor, lend countenance orencouragement to;participatein as an auxiliary---Tocontribute effort—.Id., 563 F.2d at 1229-30 (internal citations and quotationsomitted) (emphasis supplied).