United States v. Villegas, No. 09-2569 (7th Cir. 2011)
Annotate this CaseAn informant alerted law enforcement that defendant planned to rob an armored car. The FBI opened an investigation and recorded meetings at which the informant and defendant spoke about the planned robbery. On the day of the planned robbery, defendant and the informant met near the proposed robbery location. Defendant provided stolen license plates. After defendant was convicted of attempted Hobbs Act robbery, and aiding and abetting the attempted robbery (18 U.S.C. 1951), the district court applied a five-level enhancement under U.S.S.G. 2B3.1(b)(2)(C), which applies "if a firearm was brandished or possessed." The Seventh Circuit affirmed, finding the evidence sufficient to support conviction. The district court acted within its discretion in declining to give a missing witness instruction and in allowing defendant's prior conviction and alleged criminal activity into evidence. The missing witness, the informant, was physically available and was not prevented by the government from testifying and defendant "opened the door" to information about past activities. Defendant is liable for the informant's possession of the weapon in preparation for the offense.
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