United States of America v. Phillip Charles Green (97-6383)

*The Honorable William O. Bertelsman, United States District Judge
for the Eastern District of Kentucky, sitting by designation.
1
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 S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
P HILLIP C HARLES GREEN
(97-6383); S ANTOS NEGRON
(97-6384); LARRY W ADE
W ALTERS, J R. (97-6385),
Defendants-Appellants.
;>

1
Nos. 97-6383/
6384/6385
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.*

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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 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

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Nos. 97-6383/6384/6385 United States v.
Green, et al.
3
1Torres 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 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

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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 more
participants or was otherwise extensive, increase by 4
levels.
years of supervised release. Negron received thirty-seven
months of imprisonment to run consecutive to his current
term of imprisonment and three years of supervised release.
Green received eighty-four months of imprisonment to run
consecutive to his current term of imprisonment and three
years of supervised release. Walters, Green and Negron each
filed 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 four
levels for being an organizer or leader of criminal activity
pursuant to U.S.S.G § 3B1.1.2 This determination involves
a question of fact and is reviewed for clear error. United
States v. Layne, 192 F.3d 556, 578 (6th Cir. 1999) (citing
United 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 the
entire record, [the court is] ‘left with the definite and firm
conviction 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 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
Nos. 97-6383/6384/6385 United States v.
Green, et al.
9
verdict. When a criminal defendant argues a “material”
variance in the context of a bill of particulars, he must
demonstrate that the variance prejudiced “substantial rights”
and that the variance took him by surprise or placed him at
risk 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 is
immaterial if it does not impair the defendant’s ability to
defend himself through failing to identify the nature of the
charge.” Id. (citing United States v. Robinson, 974 F.2d, 575,
578 (5th Cir. 1992)).
The evidence in this case clearly supports the conclusion
that Green had an active role in the riot sufficient to support
his conviction. Furthermore, any variance between the
evidence and the bill of particulars is immaterial, and in no
way was Green taken by surprise or placed at any risk of
double jeopardy in this case. Thus, this argument is without
merit.
Therefore, finding no error in this matter, we hereby
AFFIRM the judgment of the trial court in all respects.

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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 finding
that they engaged in no criminal activity although it is clear
they 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 being
built, and he threw a chair at a window. Green also broke
glass and threw chairs. Obviously Congress did not intend
that such criminal activity go unpunished. Such a result
would 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 the
Third 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 and
is prohibited and punishable as a crime. Hence, we affirm the
district court.
Appellant Green advances several other arguments which
can be disposed of in a summary manner. He alleges that the
district court erred in curtailing his counsel’s cross
examination of government witnesses. Green, however, fails
to demonstrate how he was prejudiced by the trial court’s
moving the questioning along.
Moreover, the standard of review of a trial court’s ruling on
the admissibility of testimony and other evidence is for an
abuse of discretion. United States v. Bonds, 12 F.3d 540, 554
(6th Cir. 1993). Even in the case of a finding of abuse of
discretion, a new trial is not required unless substantial rights
are affected, as an abuse of discretion is otherwise harmless
error. We find that the trial court did not abuse its discretion
in 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 United States v.
Green, et al.
5
degree of control exercised over others.” Wright v. United
States, 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 provide
guidance to the sentencing court, and there is no requirement
that each factor be met. See United States v. Ospina, 18 F.3d
1332, 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 a
preponderance of the evidence that an enhancement is
justified. See United States v. Feinman, 930 F.2d 495 (6th
Cir. 1991). Establishing that Walters recruited others to join
the riot is sufficient to justify an upward departure. See
United States v. Garcia, 20 F.3d 670, 674 (6th Cir. 1994),
cert. denied, 513 U.S. 1159, 115 S.Ct. 1120, 130 L.Ed.2d
1083 (1995) (defendant’s recruitment of accomplices was a
factor justifying an enhanced sentence under U.S.S.G
§ 3B1.1).
The record contains the trial testimony of several witnesses
that Walters’s role in the riot was sufficient to justify an
enhancement. One witness testified that Walters encouraged
other inmates to join the riot and encouraged violence. (Jesse
Younger at 51/1/97 TR 294). Additionally, Walters “stated
for everybody to join him before the staff did a count.” (Id.
at 298).
Another witness testified that Walters yelled for the other
inmates to “‘Take [a staff member’s] [expletive deleted] keys,
take his [expletive deleted] radio, we have come to get our
people, let our people go’, or words to that effect.” (Archie
Wiggins at 5/1/97 TR 360).
A third witness testified that Walters also instructed the
inmates to get the staff’s video cameras. (Andrew Danner at
5/2/97 TR 580-81). A final witness testified that Walters was
yelling: “‘[W]e (the inmates) can go in there and take the
[other inmates] out[.] You all can’t stop us.’” (Mike Wallace
at 5/2/97 TR 622). Walters also encouraged others to join the

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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 and
directed them what to do. Thus, the district court did not err
in 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, which
provides that “[w]hoever instigates, connives, willfully
attempts to cause, assists, or conspires to cause any mutiny or
riot, at any Federal penal, detention, or correctional facility,
shall be imprisoned not more than ten years or fined under
this title, or both.”
Negron and Green argue on appeal they were only mere
participants in the prison riot and that such does not constitute
a violation under 18 U.S.C. § 1792. This is an issue of first
impression in this circuit, although other circuits have spoken
on the issue with differing voices. Therefore, there exists a
need for clarity in this circuit regarding the interpretation of
18 U.S.C. § 1792. Since this matter involves statutory
construction, it is reviewed de novo by this court. See United
States 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 18
U.S.C. § 1792 limit the offense to the instigation of or
connivance to cause a riot or mutiny and does not include
participation therein.” However, the Third Circuit openly
rejected 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 given
its plain meaning. One who willfully participates in a mutiny
or riot plainly ‘assists . . . any mutiny or riot’ and thereby
violates the statute.” Id. at 1064.
Nos. 97-6383/6384/6385 United States v.
Green, et al.
7
Thereafter, the Fifth Circuit reviewed the same issue in
United States v. Bryant, 563 F.2d 1227, 1228-29 (5th Cir.
1977), and noted the split between the Third and Tenth
Circuits. The Fifth Circuit agreed with the Third Circuit
holding that “assists” as used in the statute means “willful
participation.” The court rejected the defendants’ argument
that the statute only prohibits instigating, causing, or
conspiring to cause a riot. It concluded that interpreting the
language in such a manner would mean that participation in
a prison riot would no longer be a crime. Id. at 1230. The
court stated that “[it] could not believe that Congress intended
any such result.” Id.
We find the following language from Bryant particularly
persuasive.
The defendants argue that the word “assists” in the
statute must be construed in context with the surrounding
words in the statute, and when this is done it is clear that
it means “to instigate, cause or conspire to cause” a
prison riot or mutiny, and does not prohibit mere
participation therein. We do not agree. The court was
correct in its decision in Farries, supra, when it said:
The word “assists” must be given its plain meaning.
One who wilfully participates in a mutiny or riot
plainly “assists . . . any mutiny or riot” and thereby
violates the statute.
Furthermore, Blacks Law Dictionary, Revised Fourth
Edition, 1968, defines “assists” as follows:
To help, aid, succor, lend countenance or
encouragement to; participate in as an auxiliary---
To contribute effort —.
Id., 563 F.2d at 1229-30 (internal citations and quotations
omitted) (emphasis supplied).

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