based upon the government's twenty four j lotto t first across that issue era the government does concede that there was error regarding the statements of cooperation defendants having been read into the record that the government intends that thomas on its premise that a rational jury would have convicted without the era neither of them of confrontation clause cases they were jury instruction cases in which an element was omitted from the jury instruction the finding of harmless error in both of those cases was based on the so i'd like to address that aspect in the case of the reason the government can't prove that the prophet ever was homeless beyond a reasonable doubt is multiple first of all it's impossible for us to determine what credit  behalf and we also need to look at the totality of the cross that era viewed with the rest of the trial and i'm alluding to the statement of the of the government in closing argument in that verdict therefore there are too many unknowns for the government to proven cross that are beyond a reasonable doubt with regard to sentencing the government does agree that there should be talents did argue in the sentencing memoranda that they should not base offense level should not be increased and they should not be enhanced by the judge himsel the state of mind of the appellant in this case does not match the state of mind of the drug dealers especially under the ada under aiding and abetting there needs to be a similar or the same state of mind they need to share the intent under the ninth circuit model the jury instruction ending in a an aider and abettor needs to charged they don't share that particular intent they have knowledge certainly of the intent of the the drug dealers but they do not share the same intend as the drug dealers there is no evidence in this that there's any profit sharing or anything like that that there's a pre agreed profit sharing understanding when there's some evidence that they took steps to to actually make sure the drug dealers  as possible he wanted to sell a lot because they wanted to get their cut call the tax now but they wanted in any way they could help their they're protected people sell drugs was good for them the persons that had been a c l c s member was that there was a fixed fee connected with the territory for four particular drug dealers as a sting wish my profit sharing understanding amongst  the they would set up a fixed fee for a corner period and that had to be paid whether or not they sold gram one of any narcotics and as a consequence there is not  helping in a sense of taxing duis as well as they can but their fees the taxing numbers were not connected at all to the amount of drugs that were allegedly sold by the drug dealers or anything of that back nature so my contention is as pertains to count three that there is just simply is not the evidence that all of the elements that are set forth match that is the haters in the bettors simply do not share each of the the do not share each of the elements involved in the underlying drug that whatever structure was set forth by the government and established in the evidence and i do agree that there was very substantial evidence that a structure existed what i'm suggesting however by the argument is that the structure that was set up was irrevocably intertwined with the predicate act and the cases that i cited indicate that the structure split of authority amongst the various circuits about whether or not the structure had to be a structure or an enterprise had to be independent of the predicate act chambers chain indicated that there were six jurisdictions that indicated that the two had to be separate and basically there were two circus that indicated that i think the language was  follow the majority view the majority view that the two elements must be separate that there must be a showing of a structure in the alleged enterprise a separate and apart and that is not related in a sense because there is and there is a contention and i think testimony that the homicides had something to do with the notion that there was a challenge to the rent collection process so i'm saying that the structure the structure underlying structure establishments either the prosecution in the case stemmed from the tax collecting process and had texas and had tax collectors  failing to consider his culpability volatility that of the other defendants and obviously in this case we have a very large criminal enterprise there were murders attempted murders there were all kinds of things happening in this case and compared to the other defendants his that not only was he a driver he was a collector and collected rather large sums of money from time to time so it would seem that he could be a major producer and even if he wasn't doing this many bad some of the others well i think the whole point is that the district court should have made a finding as as far as comparing his culpability to that of the other defendants and that just wasn't done and  consultation that the issue of course out of the evidence was emitted through a proper channels after hearing with the court and argued about in two thousand and four abrogated the case we relied on we do we did hear what we believe this court has asked the government to do in cases like this take a hard look at your evidence and concede if there's an error and we have conceded that there was an error we do believe that under the the standard for harmless error we have been able to convince the court has applied the test of whether this court can look at the river ticks and determine beyond a reasonable doubt that this is three pages of trial transcript not testimony but this stipulation entered into on the yet the stipulation was evidence of little consequence it was evidence that was cumulative in every instance it was evidence that was corroborated in every instance by other direct evidence for each of the points and the overwhelming evidence of the government's case swamps the single reed of error in this case if i may and get right to it the stipulation breaks down to about three parts it's i'm trying to  stipulation breaks down to three parts the rodriguez and ramirez statements that hernandez and lopez statements and the gonzales statement hernandez lopez statement of basically the same statement there has been a wife they both state we possessed crack cocaine on september nin stipulation to the point where the stipulation doesn't even refer to the defendant's there is no link to the defendants the rodriguez ramirez rent collection and the hernandez lopez dope dealing with those facts are proven beyond any dispute in this trial dealer and even llama dale a woman apparently of great beauty was was turned it was proven to be a drug dealer so the drug dealing evidence was overwhelming remeron him and he meant it as testified to it in detail the recollection evidence was even greater  tiny smokey pee wee and sometimes it was streets hollywood alvarado was extremely well organized and well kept the evidence of rent collection there was surveillance of each rent collector testimony from sanford about that three hundred mexican mafia those four side if i may they consolidate statements so the only ones on our review that even resemble the cases of bowling in nielsen where this court found there was harmless error and i say that only because talking about he kept saying steven come and steven been there and finally who the guy you gave the guns to in fact mr geragos or testified in the trial and it made it that openly said yes i wanted to kill greedy i didn't i did conspire to kill greedy i didn't ask villa to do it for me i didn't arrange to have the two guns get to villa i hated greedy because he snitched me out and he says i'm responsible for these murders i didn't commit so goes there was a remarkable witness he danced a fine line basically saying but it was not enterprise act it was a personal vendetta i had with greedy and in fact mr avila and i did not agree he was doing this a favor this case had that stipulation really was watered down to the point where it was basically fallow ground it was virtually unused we didn't make use of it as it is as a sword during the trial anyway such as this stipulation proves that there was no inference this stipulation means that this no one testified about it as inviting this court pointed out a concern is when there is direct vivid crucial testimony forensic accountant term in the during the time period of ninety five through two thousand this can solace who is on food stamps and welfare have known expenditures of two hundred fifty thousand dollars and no job no income course there's other guilt humility in every way and corroborated in every way it was evidence that simply was unnecessary and looking back at it was largely brought in because the time we thought junior was going to go to trial he pled out three days early little unknown because there is so much evidence of the guilt of zaragoza of martinez and pia and particularly with regard to racketeering act four and fifteen moving on if i may to address the enterprise question came from were not cooperated defendants they were there was no cooperation with them that's just been a misunderstanding it's understandable mr eko was not at trial i have a great deal that admiration for her as counsel but it's just a misunderstanding they would not cooperate in defendants i don't think that makes any difference but it is is a lengthy call between joanna lopez one of the drug dealers most prominent and one remeron who at the time was a shock collar in which she literally talks about i don't have enough of your people out here that the gang operated testimony as i stand here but remeron and jimenez talk about how the percentages went up with the sales and remeron in particular who came on board as the shot caller in ninety four testifies how they continually ramped up the percentages and that's why they had their people out there the people were out there to see how much money was being made was a constant dance between the drug dealers and the calls indicate this constant dance between drug dealers who were lowballing the gang and the gang who wanted more it was not some fixed fee it was a classic protection of racket in which the gang offered protection to the drug dealers who had no other way of getting protection and i would only point this court to the shryock decision  z discusses how they collected the money and how they got what kind of numbers they collected it also points out that this was a separate apart organization they were both c l c s they knew they were c l c s they followed orders from martinez from the marrow they did not drug dealers were doing their own thing but they were paying for protection they were paying rent and in shryock it points out that that control that authority that assignment of streets  profit sharing in the use of violence when there's a problem in the neighborhood is very much eating the bedding and this is the same premise i believe that there was one of the merger issue out there that when that happens there could be a problem with murder this is a case where racketeers gang members have found it extremely lucrative contract rudimentary but brilliant business because undetected by state authorities because there's not there's no you can't get to it without wiretaps just in the sense of the argument the wiretaps allow the phones and the the actual corpus to let die of the crime the discussion of the business to be captured and that is separate and apart and ongoing a continuous see l c s existed before they decided to start collecting rent they exist to this very day however during this time period they were highly lucrative business and the evidence demonstrated a decision making as m amendment error that requires a full reset and saying and this is not the correct reading of the book or in am a line this court said that judicial fact finding is only erroneous when coupled with a mandatory application of the no garcia was romero who was the shot caller he was romero's driver and he was a rent collector and the p s r and the government both argued that he was not entitled to any reduction for minor role and the district court found at sentencing that his participation and activities are much more than minor or minimal role argument is the district court  district court did not explicitly state that he was comparing serrano garcia to the other participants but i don't think he had an obligation to do that in sanchez lopez this court held that a simple statement that the defendant did not play a minor role as enough and that is the statement the judge lou made here he presided over the trial he also conducted the sentencings on all of the other defendants and i think that from his role he was able to drugs and rent collections it doesn't matter that the statements didn't mention any of the three defendants because this was a rico conspiracy case and the defendants were held to the activities of