Santiago, Jimmy v. Veach, Rick ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 1, 2007*
Decided February 9, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 06-2595
JIMMY SANTIAGO, Appeal from the United States
Petitioner-Appellant, District Court for the Central
District of Illinois
v.
No. 1:05-CV-1176
RICK V. VEACH,
Respondent-Appellee. Joe Billy McDade,
Judge.
ORDER
Jimmy Santiago is serving 30 years in federal prison for conspiracy to possess
with intent to distribute cocaine base. He petitioned for a writ of habeas corpus
under 28 U.S.C. § 2241, challenging a disciplinary conviction for trying to acquire
an explosive device that resulted in 60 days in disciplinary segregation and the loss
of 40 days of good-time credit. Santiago argues that he was denied due process
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 06-2595 Page 2
because the Discipline Hearing Officer (DHO) found him guilty without sufficient
evidence. The district court denied the petition and we affirm.
While searching Santiago’s cell, a prison guard found a hand-drawn diagram
illustrating the design of a bomb that could be concealed inside of a book. The
guard also discovered a handwritten list of book titles, with corresponding catalog
numbers, which included “Middle Eastern Terrorist Bomb Designs” and “Bazooka:
How to Build Your Own.” The Unit Disciplinary Committee conducted a
preliminary hearing at which Santiago admitted that he copied the diagram and
book titles from a catalog he allegedly found in the trash. Consequently, the
committee referred the case to the DHO and recommended an increase in his
charge from possessing unauthorized material, 28 C.F.R. § 541.13, Table 3, 305, to
“attempting” or “making plans to” possess or manufacture an explosive device, see
28 C.F.R. §§ 541.13(b), 541.13, Table 3, 104. The DHO took the committee’s
recommendation and relying on a prison official’s summary of staff and inmate
statements related to the investigation, the actual diagram and list of books, and
Santiago’s own admissions found him guilty.
After exhausting his administrative remedies without success, Santiago filed
his federal petition. He argued that taking the catalog from the trash and copying
the design of the bomb and the book titles are not actions that prove he was
attempting to acquire a bomb. The government disagreed and provided a
declaration from a prison official who stated that the catalog Santiago copied the
bomb design and book titles from “has not and would not be allowed in the
institution.” The court acknowledged that there is “only a loose causal connection”
between Santiago’s possession of the drawing and a possible attempt to possess or
manufacture a bomb, the court nonetheless held that “some evidence” supports
Santiago’s conviction and denied his petition.
On appeal Santiago presses his argument that the evidence was insufficient,
noting that no items necessary to construct a bomb were found in his cell and no
evidence shows that he discussed building a bomb with anyone. He contends that,
at most, he is guilty of possessing unauthorized materials, a lesser offense. See 28
C.F.R. § 541.13, Table 3, 305 (listing sanction as forfeiture of up to 30 days of good-
time credit). Due process requires a disciplinary conviction to be supported by at
least “some evidence.” See Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472
U.S. 445, 455 (1985); Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003). We apply a
“lenient standard” in reviewing the sufficiency of the evidence supporting a
disciplinary conviction, asking “whether there is any evidence in the record that
could support the conclusion reached by the disciplinary board.” See Webb v.
Anderson, 224 F.3d 649, 652 (7th Cir. 2000) (emphasis in original) (citation
omitted).
No. 06-2595 Page 3
We agree with the district court that although the evidence was sparse, there
was nonetheless “some evidence” to support Santiago’s disciplinary conviction. The
regulations make clear that “attempting to commit . . . [or] making plans to commit
[an offense] in all categories of severity, shall be considered the same as a
commission of the offense itself.” 28 C.F.R. § 541.13(b). Santiago may not have
gathered the materials necessary to build the bomb or discussed his plans, but
copying the bomb design was a necessary and substantial first step. If by alluding
to his lack of material he implies that he could not actually have built the bomb, his
argument is unavailing because factual impossibility is no defense to a prosecution
for attempt. See United States v. Bailey, 227 F.3d 792, 797 (7th Cir. 2000). And the
DHO’s fear that Santiago could smuggle the necessary components for the bomb
into the prison is not unfounded—inmates have built working book bombs in the
past. See United States v. Saunders, 166 F.3d 907, 910 (7th Cir. 1999). Finally,
while there may be no direct evidence of Santiago’s intent to build a bomb, the
drawings and list of books are circumstantial evidence that he was planning to do
so, and that is enough to support the DHO’s determination. See United States v.
Julian, 427 F.3d 471, 484 (7th Cir. 2005) (“A defendant’s intent may be proven
through circumstantial evidence.”); Webb, 224 F.3d at 652 (remarking that even
“meager” evidence can support disciplinary sanction). While copying a diagram of a
bomb and book titles from a catalog is meager evidence of making plans to
manufacture a bomb, especially when the record reveals that Santiago has no
history of attempting to build bombs, it provides some evidence to support his
conviction and that is enough.
Accordingly, the judgment of the district court is AFFIRMED.