actions was justified, is surprising to this court, because the responsibility of the Department of Justice, in its representation of the United States in criminal proceedings, is to do justice and to see to it that the law is e district court noted the vulnerability of the elderly widow gave notice of the use of any "victim-related” departure factors, and the fact that the case was compared to another fraud case in which an upward departure was upheld gave notice of the potential use of any "offense-related” factors. 8 . See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). 9 . See United States v. Tello, 9 F.3d 1119, 1129 (5th Cir.1993) (applying rule to misapplication of guidelines); see also United States v. Hinder, 355 F.3d 735, 743 (3d Cir.2004) (<HOLDING>). 10 . See, e.g., Himler, 355 F.3d at 743. 11
holding that the burden is on the plaintiff holding that failure to submit an element of the offense to the jury is subject to harmless error analysis holding burden is on the government to show participation under  2d18al holding that burden is on government to show that error in failure to provide notice is harmless holding that in order to conclude that federal constitutional error is harmless court must find that error harmless beyond a reasonable doubt