*

The Honorable William O. Bertelsm

for the Eastern District of Kentucky, sitti

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PHILLIP CHARLES GREEN(97-6383); SANTOS NEGRON(97-6384); LARRY WADEWALTERS, JR. (97-6385),

Defendants-Appellants.

Appeal from the United St

for the Western District of Te

No. 96-20098—Jerome Tur

Argued: Decembe

Decided and Filed: Jan

Before: NELSON and DAUGH

BERTELSMAN, Di
2 United States v.

Green, et al.

Nos. 97-6383/6384/6385

_________________

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 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, Phillip

Charles 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 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 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 the
Nos. 97-6383/6384/6385 

1Torres was convicted at trial with t

he did not appeal his conviction and/or sDefense Department. The total government was $3,445,165. 

During the course of the riot, ove

for smoke inhalation. Seven inmoutside hospitals for treatment. Falong with a firefighter, were transtreatment for smoke inhalation. 

On January 31, 1997, a federa

Western District of Tennessee indictment charging Brian TorreGreen with aiding and abettingwillfully attempting to cause, and prison in violation of 18 U.S.C. maliciously destroying governmenU.S.C. § 1361. Negron was addsetting of a fire within the special teUnited States in violation of 18 U

Appellants received a jury trial i

on April 29, 1997. The jury retur1997. Walters was convicted on federal prison and three counts of property. Negron was convicted ofederal prison and one count of dproperty. He was acquitted on the territorial jurisdiction of the Unconvicted on one count of rioting icount of destruction of governmconvicted on one count of rioting iacquitted on one count of destructio

Based on his conviction and crim

was sentenced to ninety-two montconsecutive to his current term o
4 United States v.

Green, et al.

Nos. 97-6383/6384/6385

2U.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 moreparticipants or was otherwise extensive, increase by 4levels.

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 the

district court erred in enhancing his base offense level by fourlevels for being an organizer or leader of criminal activitypursuant to U.S.S.G § 3B1.1.2 This 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. (quoting

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(1989)).

In making a determination regarding enhancement under

U.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 the

Nos. 97-6383/6384/6385 

verdict. When a criminal defenvariance in the context of a bildemonstrate that the variance prejuand that the variance took him by risk of double jeopardy. United S(6th Cir. 1995), cert. denied, 517 U134 L.Ed.2d 534 (1996) (citations immaterial if it does not impair defend himself through failing to charge.” Id. (citing United States v578 (5th Cir. 1992)). 

The evidence in this case clearl

that Green had an active role in thhis conviction. Furthermore, anevidence and the bill of particularway was Green taken by surprise double jeopardy in this case. Thusmerit.

Therefore, finding no error in 

AFFIRM the judgment of the tria
8 United States v.

Green, et al.

Nos. 97-6383/6384/6385

Likewise, in the present case, to interpret the statute as

Green 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 partially

destroyed 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 of

the 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 18

U.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 which

can 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 on

the 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 not

conform to the bill of particulars enough to support a guilty

Nos. 97-6383/6384/6385 degree of control exercised over oStates, 182 F.3d 458, 466-67 (6th § 3B1.1 cmt. n. 4). These factors arguidance to the sentencing court, athat each factor be met. See United 1332, 1337 (6th Cir.), cert. denied2721, 129 L.Ed.2d 846 (1994)). 

The government bears the burd

preponderance of the evidence justified. See United States v. FeCir. 1991). Establishing that Waltthe riot is sufficient to justify an United States v. Garcia, 20 F.3d cert. denied, 513 U.S. 1159, 115 1083 (1995) (defendant’s recruitmfactor justifying an enhanced § 3B1.1).

The record contains the trial testi

that Walters’s role in the riot wenhancement. One witness testifieother inmates to join the riot and enYounger at 51/1/97 TR 294). Adfor everybody to join him before tat 298). 

Another witness testified that W

inmates to “‘Take [a staff member’take his [expletive deleted] radio, people, let our people go’, or worWiggins at 5/1/97 TR 360).

A third witness testified that W

inmates to get the staff’s video cam5/2/97 TR 580-81). A final witnesyelling: “‘[W]e (the inmates) can [other inmates] out[.] You all can’at 5/2/97 TR 622). Walters also en
6 United States v.

Green, et al.

Nos. 97-6383/6384/6385

riot by shouting for the inmates in the Delta Housing Unit to“mount up.” 

This evidence is more than sufficient to establish Walters’s

leadership 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 appeal

regarding 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 mere

participants 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 reviewed de novo by this court. See UnitedStates v. Kassouf, 144 F.3d 952, 955 (6th Cir. 1998).

In United 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 in Rodgers in United

States 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. 97-6383/6384/6385 

Thereafter, the Fifth Circuit re

United States v. Bryant, 563 F.2d 1977), and noted the split betwCircuits. The Fifth Circuit agreeholding that “assists” as used in participation.” The court rejected that the statute only prohibits conspiring to cause a riot. It conclanguage in such a manner would a prison riot would no longer be a court stated that “[it] could not beliany such result.” Id.

We find the following language 

persuasive. 

The defendants argue that the statute must be construed in contwords in the statute, and when thit means “to instigate, cause oprison riot or mutiny, and dparticipation therein. We do nocorrect in its decision in Farries

The word “assists” must be giOne who wilfully participateplainly “assists . . . any mutinviolates the statute.

Furthermore, Blacks Law Dict

Edition, 1968, defines “assists” 

To help, aid, succor, leencouragement to; participat

To contribute effort —.

Id., 563 F.2d at 1229-30 (internaomitted) (emphasis supplied).