Full opinion text
FAY, Circuit Judge: Three defendants appeal from their convictions of conspiracy, mail fraud, violations of the National Stolen Property Act, and a violation of the Racketeer Influenced and Corrupt Organization Act [RICO]. Their appeal has launched this Court into an extensive fishing expedition undertaken by the appellants. The defendants also appeal cumulative sentences imposed by Judge George C. Carr of the Middle District of Florida. The defendants, G. Cecil Hartley, Travis Dell, and Treasure Isle, Inc., baited their appellate hooks with a large assortment of tempting issues — fourteen by their count — in an attempt to land the prize catch — a reversal. We found only two deserving of a judicial nibble, but none worthy of setting the hook. Upon reeling through this opinion, the appellants will unfortunately find their catch should be mounted as “the one that got away.” Affirmed. Treasure Isle, Inc., is a Florida corporation specializing in the production of breaded seafood products. Its production of frozen breaded shrimp for consumption by the military provided the basis of the thirty-three count indictment. G. Cecil Hartley serves as one of Treasure Isle’s vice presidents; Travis Dell occupies the position of plant manager. Count one charged the defendants with conspiring to defraud the United States Government by supplying breaded shrimp that did not conform to designated military specifications. The shrimp contained too much breading, were of inadequate size, and had not been properly cleaned. Counts two through fifteen concerned mail fraud violations regarding invoices sent to the government seeking payment for the nonconforming shrimp. Counts sixteen through eighteen charged mail fraud violations for invoices directly related to sample production lots under investigation. Counts nineteen through thirty-two charged defendants with the interstate transportation of money obtained by fraud which consisted of United States Treasury checks corresponding to the invoices involved in counts two through eighteen. The RICO count charged that the activities outlined in the previous thirty-two counts established a pattern of racketeering. After approximately ten weeks of trial, a jury convicted the three defendants of all thirty-three counts. Treasure Isle was fined $167,000 for its participation in the first thirty-two counts and was sentenced to perform community service for its conviction under the RICO statute. The District Court sentenced Hartley and Dell to one year with three year’s probation and a special condition of community service. Hartley additionally received a $25,000 fine. The District Court denied the defendants’ post-trial motions for an arrest of judgment, a judgment of acquittal, and a new trial. At the center of this case are the imaginatively deceptive schemes designed to circumvent the inspection procedures implemented by the government to assure the quality of the shrimp purchased. The indictment covered a time period prior to 1970 and continuing to July, 1978. During this period three inspection procedures were employed — each inducing the defendants to charter another vessel with which to defraud the government. SCHEME I Apparently the government had begun purchasing shrimp from Treasure Isle in the late 1960’s. Pre-1974, military inspectors made individual examinations of each box of raw shrimp as well as every tank of peeled shrimp. If the shrimp satisfied the inspection criteria, an “accept” card was placed on the inspected box or tank. Nonconforming shrimp received a “reject” card. Testimony revealed that Dell directed Treasure Isle employees to remove “reject” cards from inspected tanks, replace them with “accept” cards from other inspected tanks, and destroy the “reject” cards. In this manner, tanks which had already been “accepted” would be reinspected only to again be approved by the military inspector. Rejected tanks would now bear the “accept” cards and would be placed into the subsequent production process. Treasure Isle’s cooler foreman implemented the same plan on the boxes of raw shrimp at the instigation of Dell and Hartley. But, switching cards was just the beginning. At the direction of Dell and Hartley, a Treasure Isle employee modified a weight used by the inspectors in determining the number of shrimp per pound. The modification was accomplished by cutting two and one-quarter ounces off of a five-pound weight. By doing so, less shrimp were required to balance out the five-pound weight, which now weighed in at four pounds, thirteen and three-quarter ounces. Treasure Isle employees also falsified production sheets to allow for after-hour processing of shrimp, which would then be packed without having been inspected. And, employees were directed to inform the inspectors that they miscounted boxes of inspected shrimp permitting additional un-inspected boxes to be added during the inspector’s absence. SCHEME II The government changed its inspection system in October, 1974. Rather than inspecting each individual box, the inspectors began a random sampling of the “end product.” Under this new system, inspectors selected thirteen boxes of breaded shrimp from each day’s production. The boxes were stored overnight in a locked freezer for which only the inspectors supposedly possessed a key. Each box was marked by the inspectors prior to being placed in the locked freezer. The following day, the inspectors would retrieve the samples and conduct an analysis to determine the shrimp’s conformance with the requisite specifications. If the sample shrimp conformed, the inspectors approved the entire production lot for that day. Upon receiving notice that an entire lot had been rejected under the new system, the defendants created a new means by which to accomplish their goal. Not to be outdone by the government’s selective sampling, Treasure Isle employees prepared their own sample lot. Each day a “sample run” was made in which the largest shrimp were meticulously processed. Great care was taken to peel and devein the largest shrimp; and extra caution was taken to insure no more than 40% of the shrimp’s total weight was attributable to breading. The “sample run” was then set aside for special work later that evening. The production'tfien returned to “normal”. Smaller shrimp, less careful cleaning, and devein-ing, extra breading, and sloppy freezing became the order of the day. Reminiscent of Houdini, each night after the inspectors had departed, Treasure Isle employees would sneak into the locked freezer, duplicate the inspector’s markings on the “sample run” boxes, and substitute them for the sample lot selected by the inspectors earlier that day. Thus, the next day the inspectors would test only the best of Treasure Isle’s production, which unsurprisingly met the military’s specifications. This was not the extent of the defendants’ scheme, however. Testimony revealed that chemicals were added to large batches of shrimp which had developed a foul odor to enable the shrimp to be processed and frozen undetected. Rejected shrimp would be secretly added to other production lots. Shrimp received from abroad were also processed in the lots sold to the government. Once again, false counts were given to inspectors to enable Treasure Isle to include uninspected shrimp in government orders. And the company developed signals to alert employees of an inspector’s approach. The conspiracy reached beyond the officers and employees of the corporation, and included military inspectors assigned to the plant. Boxes of shrimp, liquor, and money were used on several occasions to bribe inspectors to falsify reports. The schemes appeared to grow and diversify until uncovered by one of the military inspectors. DETECTION I Years elapsed before the government learned of the shenanigans being played by Treasure Isle, its officers and employees and the military inspectors. In December, 1977, military inspector David Klopp, noticed a difference in the markings of the sample boxes stored for inspection and those inspected the following day. This prompted him to conduct an experiment by specially marking boxes in an unusual location and checking the markings the next day. He found the boxes inspected lacked the special markings and always satisfied the military specifications. Two production lots were then designated for a more intensive investigation, the infamous lots F6968 and F7008. Once assured that the switch had taken place, Klopp’s supervisors reported to the Quality Assurance Officer at the Defense Personnel Support Center, who assigned a criminal investigator to the case. Soon thereafter the investigator interviewed a Treasure Isle employee, who revealed that the random samples selected by Klopp and bearing his special markings had been placed back into production lots F6968 and F7008. Arrangements were then made to secure these lots at their intended destinations to allow for proper testing. Lot F6968 arrived in Watertown, Massachusetts, and was subsequently tested there by both military and civilian personnel. Sections of lot F7008 were secured and tested in Norfolk, Virginia, and Fort Worth and San Antonio, Texas. The government found the samples did not conform to the requisite specifications. With this collection of data, the prosecu-torial wheels were set in motion. On August 8, 1979, the Grand Jury returned a fourteen-page indictment. Ten weeks of trial and thirty-three convictions later, the defendants appeal to this Court for relief. Armed with enough tackle to land the big one, the appellants have cast fourteen lines into the Court’s sea. Two provocative issues have been raised. One, whether a corporation can conspire with its officers, agents and employees, assuming arguendo insufficient evidence to support a conspiracy with the military inspectors. And two, whether a corporation can simultaneously be the defendant and the criminal enterprise under the RICO statute. The remaining issues concern various evidentiary rulings, an allegation of improper prosecutorial comment, jury instructions, and sentencing. No one will be surprised at the variety of species tangled in this net. The Octopus — Intracorporate Conspiracy The appellants submit that absent proof of the military inspector’s knowledge of the defendants’ scheme to switch the sample lots, there is insufficient evidence to connect them with the conspiracy. Without outside involvement, they argue the conspiracy must necessarily be limited to a single entity — the corporation and its officers and employees. Basic to a conspiracy, however, is the requirement of an agreement between two or more parties. Nelson Radio & Supply v. Motorola, 200 F.2d 911 (5th Cir. 1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953). Thus, they contend that as a matter of law there could be no conspiracy between Treasure Isle, Travis Dell, and G. Cecil Hartley, since collectively they form a single entity. We find sufficient evidence from which a jury could connect t. i military inspector with the overall conspiracy to defraud the government and additionally find no difficulty in abandoning the single entity fiction for purposes of these convictions under the criminal conspiracy statute, 18 U.S.C. § 371 (1976). Because the government elected not to prosecute the military inspectors in this case, we are not confronted with an evaluation of the sufficiency of the evidence with respect to convictions of the inspectors. And yet, the essence of the appellants’ in-tracorporate conspiracy issue revolves around the lack of evidence to prove the inspectors’ knowledge of the switching scheme, labeled by appellants as the “linchpin” of the conspiracy. Our duty then is limited to examining the record to determine if it reveals sufficient evidence to support the defendants’ convictions of conspiring with the military inspectors. By viewing the evidence in the light most favorable to the government, Glasser v. United States, 815 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), could “a reasonably minded jury ... accept the relevant evidence as adequate and sufficient to support the conclusion of the appellant’s guilt beyond a reasonable doubt.” United States v. Tolliver, 665 F.2d 1005, 1007 (11th Cir. 1982). Testimony from the military inspectors disclosed numerous instances in which Inspectors Davis and Sims received gratuities in the form of money, shrimp, and liquor in exchange for falsifying inspection reports, which would otherwise have rendered unfavorable results for Treasure Isle. A Treasure Isle employee, Butch Sheffield, corroborated the inspectors’ testimony. He testified to having given shrimp to Inspector Davis at the direction of Hartley and Dell. He also recounted an episode during which Inspector Davis retrieved money from Hartley’s desk and commented to him: “I want you to look here what they give me for all I let them get by with.” Record, vol. XXXIII, at 3675. “Because a conspiratorial agreement is often reached in secrecy, the existence of the agreement or common purpose may be inferred from relevant and competent circumstantial evidence.... ” United States v. Ballard, 663 F.2d 534, 543 (5th Cir. 1981) (citations omitted). Involvement in a single transaction may permit an “inference of knowledge of the broader conspiracy where the single act itself shows so much familiarity with or high-level participation in the overall conspiracy as to be in and of itself indicative of the broader conspiracy.” United States v. Hawkins, 661 F.2d 436, 454 (5th Cir. 1981) (quoting United States v. Torres, 503 F.2d 1120, 1124 (2d Cir. 1974) (emphasis added)). All that is necessary is that the person “be aware of the essential nature and scope of the enterprise and intend to participate.” United States v. Conroy, 589 F.2d 1258, 1269 (5th Cir.), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979); see also United States v. Martino, 648 F.2d 367, 404 (5th Cir.), cert. denied, - U.S.-, 102 S.Ct. 2020, 72 L.Ed.2d 474 (1982). By their own admissions the inspectors knew of and participated in more than one transaction to falsify reports in exchange for gratuities bestowed upon them by Treasure Isle, its officers, and employees. There can be no doubt they “knew that criminal activity was afoot.” United States v. Alvarez, 625 F.2d 1196, 1198 (5th Cir. 1980) (en banc), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 324 (1981). Our review of the evidence convinces us that the inspectors were well aware of the appellants’ intent to defraud the government by supplying it with nonconforming shrimp. This overall scheme to defraud encompassed not only the sample switching, but the bribing of the military inspectors. The evidence clearly reveals the inspectors’ participation in the latter; lack of knowledge concerning the former does not negate the inspectors’ involvement in the overall conspiracy. We reemphasize that our intention is not to assume the role of a jury in evaluating the guilt of the inspectors. Rather, we have examined the record to assure the existence of sufficient evidence from which the jury could infer the existence of a conspiracy involving Treasure Isle, its officers and employees and the independent military inspectors. It is clear such exists. Even under the antitrust cases cited by appellants, an independent coconspirator provides the multiple entities so essential to the finding of a conspiracy. See Johnston v. Baker, 445 F.2d 424 (3d Cir. 1971); United States v. Sherpix, Inc., 512 F.2d 1361 (D.C.Cir.1975); United States v. Spiezio, 523 F.Supp. 264 (E.D.Pa.1981). While the existence of noncorporate coconspirators alleviates the need for a discussion of the intra-corporate conspiracy doctrine, the provocative nature of the issue compels us to rule on its application to the facts of this case. The difficulty in accepting the theory of intracorporate conspiracy is conceptual. Under elementary agency principles, a corporation is personified through the acts of its agents. Thus, the acts of its agents become the acts of the corporation as a single entity. The conceptual difficulty is easily overcome, however, by acknowledging the underlying purpose for the creation of this fiction — to expand corporate responsibility. By personifying a corporation, the entity was forced to answer for its negligent acts and to shoulder financial responsibility for them. See Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 608 (5th Cir. 1981). The fiction was never intended to prohibit the imposition of criminal liability by allowing a corporation or its agents to hide behind the identity of the other. We decline to expand the fiction only to limit corporate responsibility in the context of the criminal conspiracy now before us. Ours is not the first court to be unpersuaded by the attempted application of this agency principle in the conspiracy context. See Dussouy, noting with approval United States v. Consolidated Coal Co., 424 F.Supp. 577 (S.D.Ohio 1976) and Novotny v. Great American Savings & Loan Assn., 584 F.2d 1235, 1258 (3d Cir. 1978) (en banc) (dictum) (limited to conspiracy among officers), vacated on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). “In these situations, the action by an incorporated collection of individuals creates the ‘group danger’ at which conspiracy liability is aimed, and the view of the corporation as a single legal actor becomes a fiction without a purpose.” 660 F.2d at 603. The premier case applying general agency principles to preclude intracorporate conspiracy was Nelson Radio & Supply v. Motorola, 200 F.2d 911 (5th Cir. 1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953). In Nelson Radio the Fifth Circuit examined an alleged conspiracy among a corporation, its officers and employees in the antitrust context. In its opinion, the Court stated: “A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation.” Id. at 914. This language laid the groundwork for subsequent antitrust actions in which the Fifth Circuit and others consistently relied on Nelson Radio in refusing to allow similar actions. Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879 (3d Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981); Spectrofuge Corp. v. Beckman Instruments, Inc., 575 F.2d 256 (5th Cir. 1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979); H & B Equipment Co. v. International Harvester Co., 577 F.2d 239 (5th Cir. 1978); Morton Buildings of Nebraska, Inc. v. Morton Buildings, Inc., 531 F.2d 910 (8th Cir. 1976); Greenville Publishing Co. v. The Daily Reflector, Inc., 496 F.2d 391 (4th Cir. 1974). Dissatisfaction with the rule came as early as the Nelson Radio opinion itself. In his dissent, Judge Rives referred to an earlier United States Supreme Court decision in which Mr. Justice Burton had acknowledged without concern that the complaint had alleged a conspiracy between a corporation and four of its officials. Judge Rives stated: “My brothers use such strong adjectives as ‘unique’ and ‘absurd’ in referring to the contention of a conspiracy to which only the corporation and its own officers and agents are parties. That thought did not occur to Mr. Justice Burton. . .. ” 200 F.2d at 918 (Rives, J. dissenting). Antitrust litigation is a peculiar form of legal action. Indeed, the language of the Sherman Act alone gives pause for consideration of intracorporate conspiracy within its framework. Section one’s reference to conspiracies “in restraint of trade” implies a requirement of multiple entities; whereas section two’s prohibition of monopolies aims at a single conglomerate. If section one’s conspiracy charge was satisfied by a single corporate entity, it would arguably render section two meaningless. See Dussouy, 660 F.2d at 603. But even in the antitrust areas courts have fashioned an exception to the general rule “when the officer has an independent personal stake in achieving the corporation’s illegal objective.” Greenville Publishing Co., Inc. v. The Daily Reflector, Inc., 496 F.2d 391, 399 (4th Cir. 1974); Spectrofuge Corp. v. Beckman Instruments, Inc., 575 F.2d 256 (5th Cir. 1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979); Jewel Foliage Co. v. Uniflora Overseas Florida, Inc., 497 F.Supp. 513 (M.D.Fla. 1980). Outside the antitrust sphere, the single entity concept has met sterner opposition. The issue has been encountered in § 1985 actions concerning conspiracies to discriminate. While the outcomes are far from consistent, it has been held that when more than one act of discrimination is alleged, a cause of action for conspiracy exists between corporate officers. Novotny v. Great American Federal Savings & Loan Assn., 584 F.2d 1235 (3d Cir. 1978), vacated on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979) (assuming but expressly withholding decision on this issue). See also Craft v. Board of Trustees, 516 F.Supp. 1317 (N.D.Ill.1981); An-Ti Chai v. Michigan Technological University, 493 F.Supp. 1137 (W.D.Mich.1980). In United States v. Consolidated Coal Co., 424 F.Supp. 577 (S.D.Ohio 1976), the District Court confronted the single entity fiction in a criminal conspiracy setting. It held “that a corporation can be charged with conspiring with its corporate personnel.” Id. at 581 (emphasis supplied). The court relied in part on the words of Mr. Justice Harlan in his concurring opinion in United States v. Wise, 370 U.S. 405, 82 S.Ct. 1354, 8 L.Ed.2d 590 (1962) (Harlan, J. concurring) (see note 12 supra). “[T]he fiction of corporate entity, operative to protect officers from contract liability, had never been' applied as a shield against criminal prosecutions. ... ” Id. at 417, 82 S.Ct. at 1362. We find this language most persuasive and in line with the underlying purpose that led to the creation of the fiction of corporate personification. It originated to broaden the scope of corporate responsibility; we will not use it to shield individuals or corporations from criminal liability. The former Fifth Circuit recognized this exception to the fiction in criminal conspiracy cases in Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594 (5th Cir. 1981) when it stated: “a corporation can be convicted of criminal charges of conspiracy based solely on conspiracy with its own employees.” Id. at 603. We now adopt this exception and hold that it is possible for a corporation to conspire with its own officers, agents and employees in violation of 18 U.S.C. § 371. Like the octopus, appellants’ conspiracy issue possesses tentacles which reach out to allege the improper admission of coconspir-ator’s statements, the trial court’s refusal to instruct the jury on its James determination, and an improper denial of a judgment of acquittal. We find the tentacles no more persuasive than the octopus itself. Tentacle 7 — Coconspirator’s Statements Federal Rule of Evidence 801(d)(2)(E) articulates the coconspirator exception to the hearsay rule. It provides for the admission of statements “by a coconspirator of a party during the course of and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E). The appellants argue that absent proof that the military inspectors “were knowing participants in the schemes and conspiracy,” their testimony should not have been admitted. Appellant Hartley’s Brief at 14. Appellants are quick to point out statements made by the inspectors which implicate them in acceptance of gratuities and the falsification of inspection reports, but they are retiscent when it comes to any inferences to be derived from these facts. They claim the record is void of any testimony disclosing that the inspectors verbally informed the appellants of their falsification of the worksheets, that they were instructed by the appellants to do so, or that they entered into an agreement to do so. In order to admit coconspirators statements, the trial judge is required to determine if evidence independent of the hearsay statements shows a conspiracy did exist, that the persons were members of the conspiracy, and that the statements were made during the course and in furtherance of it. United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). We find the record contains ample evidence to support the trial court’s decision to admit the coconspirators’ statements. “The essence of conspiracy is the agreement to engage in concerted unlawful activity.” United States v. Grassi, 616 F.2d 1295, 1301 (5th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 220 (1980). There is no requirement, however, that the agreement be express. In fact, the secret nature of a conspiracy in most instances requires the trier of fact to infer its existence from the surrounding circumstances. A witness’s “own statements constitute independent evidence for the purpose of applying the James standards as to that particular [participant].” United States v. Roe, 670 F.2d 956, 963 (11th Cir. 1982). Inspector Davis’s testimony revealed numerous instances where he accepted money and shrimp from Hartley and Dell. His testimony also revealed his alteration of inspection reports to reflect satisfactory conformance of shrimp which had previously been rejected under the stringent military specifications. Davis testified that he altered the reports after discussing the rejection of the shrimp with Dell. Appellants rebutted by contending that the inspectors stole the shrimp without the knowledge of Hartley and Dell and that the falsification of records was a unilateral action undertaken by Davis. But credibility is for the fact finders. Considering the inspector’s awareness of his own job and the consequences of his verification of the shrimp’s quality, there can be no doubt he had knowledge of the deception taking place. His acceptance of gratuities during the same time period clearly gives rise to the inference of a conspiracy. See United States v. Willis, 639 F.2d 1335, 1339 (5th Cir. 1981). This logical inference provides the essential nexus that appellants’ argue is lacking. We have no difficulty in finding the trial court correctly determined the existence of credible evidence independent of hearsay statements showing the existence of a conspiracy. Likewise, we also find the court correctly concluded that the hearsay statements were made during the course of and in furtherance of the conspiracy. Thus, the District Court properly admitted Davis’s testimony. Appellants contend United States v. Jordan, 627 F.2d 683 (5th Cir. 1980) compels a contrary ruling on this issue. Jordan involved a conspiracy to defraud the government through the falsification of invoices for milk and orangeade sold to a school participating in a federally funded lunch program. The court reversed the conviction of a clerical employee of the dairy, Jordan, who under instructions from his employer, falsified the invoices. The record had disclosed no evidence to show Jordan’s knowledge of the purpose for altering the invoices, which the court found essential to support his conviction of participation in the conspiracy. Such facts are inapposite to those presented here. Tentacle II — Jury Instructions During the charge conference, the appellants requested the District Court to instruct the jury that in determining a defendant’s participation in the conspiracy it should consider “only that evidence, if any, pertaining to his own acts and statements.” The court refused their request. Citing the Fifth Circuit’s holding in United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), the appellants now argue that this refusal in combination with the court’s refusal to advise the jury of its James determination impermissibly allowed the jury to consider hearsay evidence and acts other than those of each individual defendant in determining the appellants’ participation in the conspiracy. The appellants would have the jury’s consideration limited solely to each appellant’s own acts and statements excluding all hearsay. It is not surprising the appellants want to limit the evidence available for the jury’s consideration of their guilt. But, James did not articulate such a restriction. It merely delegated the question of admissibility to the “trained legal mind of the trial judge.” Id. at 579. Once this determination has been made, the jury is free to consider the hearsay and the acts of other coconspirators in arriving at its verdict, just as it is permissible for the court to consider the hearsay in determining the sufficiency of the evidence. United States v. Mesa, 660 F.2d 1070 (5th Cir. 1981). It appears the appellants misconceive the ramifications of James. Prior to James, trial courts subscribed to a system where the judge gave cautionary instructions to the jury concerning “the role of hearsay evidence in conspiracy cases... . ” United States v. Apollo, 476 F.2d 156, 163 (5th Cir. 1973). Under this system, the judge instructed the jury at the time the hearsay was introduced and again during the final charge. These instructions were necessary to inform the jury of its preliminary duty to establish the existence of the conspiracy and each defendant’s participation in it, based solely on independent, nonhearsay evidence, prior to considering the hearsay in combination with other evidence in arriving at its verdict. Because the difficult task of determining admissibility and the use of the hearsay rested with the jury, it was crucial that it be alerted to the basic concept that an individual’s participation in a conspiracy be determined through independent evidence of his own acts and statements. The instruction to the jury on the restricted use of coconspirators’ statements became known as the Apollo instruction. The jurors were instructed to consider only the acts and statements of the individual conspirator when deciding his participation in the conspiracy. Of course, as was later recognized, if the independent evidence satisfied the jury of the existence of the conspiracy and of the membership of the defendants) being considered, the coconspirator’s hearsay was surplusage and unnecessary. James eliminated the need for a jury instruction on the preliminary finding of the existence of a conspiracy and the defendant’s participation in it. That task now rests with the trial judge. Unlike the jury, the trial judge is well acquainted with the limitation of considering only independent evidence of each individual’s own acts in determining participation in the conspiracy. Implicit within the judge’s admissibility determination then is a finding that the particular defendant’s own acts and statements, independent of the hearsay, established his membership in the conspiracy. Once this determination has been made, the hearsay testimony achieves the same status as all the other direct and circumstantial evidence. The jury’s role is determining the defendant’s guilt beyond a reasonable doubt. In order to properly make this determination, the judge instructs the jury on the applicable law. In this instance, the trial court correctly instructed the jury on the three requisite elements for a conspiracy conviction. What the evidence in the case must show beyond a reasonable doubt is one, that two or more persons in some way or manner positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan as charged in the indictment. Second, that the defendant willfully became a member of such conspiracy. Third, that one of the conspirators, during the existence of the conspiracy, knowingly committed at least one of the means or methods or overt acts described in the indictment; and four, that such overt act was knowingly committed at or about the time alleged in an effort to effect or accomplish some object or purpose of the conspiracy. Record, vol. LXXVI, at 7872-73. The third element obviously allows the jury to consider the acts of other coconspir-ators. Any overt act in furtherance of the conspiracy would satisfy it. Thus, an instruction limiting the jury’s consideration to a defendant’s own acts is not only unnecessary, but might tend to confuse the jury’s consideration of the third element of a conspiracy. In fact, the Fifth Circuit was recently confronted with precisely the opposite situation. United States v. Whitley, 670 F.2d 617 (5th Cir. 1982). In Whitley, the District Court gave the following instruction: In your consideration of the conspiracy offense as alleged in the indictment, you should first determine from all of the testimony and evidence in the case whether or not the conspiracy existed as charged. If you conclude that a conspiracy did exist as alleged, you should next determine whether or not the defendant under consideration willfully became a member of such conspiracy. In determining whether a defendant was a member of an alleged conspiracy, however, the jury should consider only that evidence, if any, pertaining to his own acts and statements. He is not responsible for the other acts or declarations of other alleged participants ’til it is established beyond a reasonable doubt, first, that a conspiracy existed, and, second, from the evidence of his own acts and statements, that the defendant was one of its members. On the other hand, if and when it does appear beyond a reasonable doubt from the evidence in the case that a conspiracy did exist as charged and that the defendant under consideration was one of its members, then the statements and acts knowingly made and done during such conspiracy and in furtherance of its objects, by any other proven member of the conspiracy, may be considered by the jury as evidence against the defendant under consideration, even though he was not present to hear the statements made or see the act done. This is true because, as stated earlier, a conspiracy is a kind of partnership, so that, under the law, each member is an agent or partner of every other member, and each member is bound by or responsible for the acts and statements of every other member made in pursuance of their unlawful scheme. Id. at 620 (emphasis supplied). The defendant argued this instruction improperly deferred the admissibility question to the jury. The Fifth Circuit disagreed. “The instruction is a variation of the standard jury instruction on proof of membership in a conspiracy.” Id. at 621. “Once admitted, the jury assesses the weight and credibility of such statements, just as it evaluates all evidence.” Id. There is an unclear suggestion that the trial court should have instructed the jury on its James determination. It would have been improper for the judge to have done so. “Such an instruction can serve only to alert the jury that the judge has determined that a conspiracy involving the defendant has been proven by a preponderance of the evidence.” United States v. Vinson, 606 F.2d 149, 153 (6th Cir. 1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980). See also United States v. Nickerson, 606 F.2d 156 (6th Cir.), cert. denied, 444 U.S. 994, 100 S.Ct. 528, 62 L.Ed.2d 424 (1979). The instruction could affect not only the jury’s determination of witnesses’ credibility, but ultimately the defendants’ guilt. We have reviewed the District Court’s instructions on the conspiracy issue. We find that the charges as a whole completely and fairly educated the jury on the legal principles and the weighing of the evidence in arriving at its verdict. United States v. Hirst, 668 F.2d 1180 (11th Cir. 1982); United States v. DeLeon, 641 F.2d 330 (5th Cir. 1981); United States v. Diecidue, 603 F.2d 535 (5th Cir. 1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980). Tentacle III — Judgment of Acquittal The District Court’s denial of the defendants’ motions for judgment of acquittal is the appellants’ fourth attempt to convince us of the absence of sufficient evidence to support the conspiracy convictions. Like the attempts which have come before, this one will not save the sinking ship. In reviewing a trial court’s denial of a judgment of acquittal, we are restricted to viewing the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Viewed in this light, we must determine whether “a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt.” United States v. Bell, 678 F.2d 547 at 549 (5th Cir. 1982) (en banc). We previously commented at length on the existence of sufficient evidence from which a reasonable jury could have and in fact did render guilty verdicts. We see little point in reiterating the evidence here. We simply wish to address the one case primarily relied on by the appellants in this issue and their brief suggestion that the trial court should have instructed the jury on multiple conspiracies. The appellants have cited this Court to the case of United States v. Rosenblatt, 554 F.2d 36 (2d Cir. 1977) and have urged us that the similarity in facts requires us to arrive at the same conclusion. In Rosen-blatt, the Second Circuit reversed the conviction of a defendant when it found the government had failed to plead or prove “an agreement on the essential nature of the fraud.” Id. at 42. The stipulated facts showed that one party had made false entries in postal records in order to secure government checks payable to nonexistent accounts payables. The government stipulated that Rosenblatt had no knowledge of the falsification of the records nor of the fraudulent receipt of government monies. Rosenblatt had merely agreed to “launder” the checks on the assumption that the payees of the checks could avoid certain tax consequences. Since each member of the conspiracy operated under different conceptions of the ultimate objective, the court found no agreement as to “the essential nature” of the conspiracy. The essential nature of the conspiracy before us was to defraud the government by supplying shrimp that did not conform to designated military specifications. All coconspirators worked toward that single objective, even though the schemes employed to accomplish it varied, as did the participants. “A single plan does not become many plans simply because some members [are] cast in roles more vital than others, or because certain members performed only a single function.” United States v. Bates, 600 F.2d 505, 509 (5th Cir. 1979), quoted in United States v. DeLeon, 641 F.2d 330, 334 (5th Cir. 1981). Unlike the facts in Rosenblatt, our facts reveal the government pled and proved one single conspiracy comprised of multifareous schemes to supply the government with nonconforming shrimp. We are unpersuaded. The Grunt — Rule 16 Rule 16(a)(1)(c) provides for the government’s production, upon request, of documents in its possession or control “which are material to the preparation of [a] defense or are intended for use by the government as evidence in chief at the trial. ... ” Fed.R. Crim.P. 16(a)(1)(C). When a party fails to comply with this rule, the District Court may impose sanctions which include prohibiting “the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances.” Id. (d)(2). During the course of trial, specifically during Inspector Davis’s direct testimony, the government sought to introduce records which Davis claimed showed alterations he had made in falsifying the inspection results. According to the government, these documents had been obtained from Davis only a few days prior to trial and the government had decided to use them the day before. Appellants entered an immediate objection to the introduction of these reports. The District Court ruled the government’s failure to disclose the reports violated Rule 16 and did not permit their introduction. The court did, however, permit the government to elicit testimony from Davis and other inspectors concerning their falsification of the reports. In addition, the court prohibited either party from arguing to the jury that the altered documents were missing. The court directed the government to give the reports to defense counsel, and extended permission for the defense to later recall Davis for further cross examination. The appellants contend the court’s sanctions should have included a preclusion of Davis’s testimony regarding the falsification of the reports and excluded the limitation on closing argument. We disagree. The trial court is granted broad discretion in imposing sanctions for discovery violations. United States v. Watson, 669 F.2d 1374 (11th Cir. 1982). “Implicit in the discretion granted the district court under rule 16(d)(2) is that the district court, in deciding what sanction to impose, consider several factors: ‘the reason why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances.’ ” United States v. Sarcinelli, 667 F.2d 5, 6-7 (5th Cir. 1982) (quoting 8 Moore’s Fed. Practice 116.04(3) (2d Ed. 1981)). First, the government explained its last minute decision to offer the documents into evidence and that it had only obtained possession of them days before. Nevertheless, the court disallowed the introduction of them; a sanction which punished the government for violation of Rule 16 and protected the interests of the defendants. Second, the appellants cite this Court to the record to substantiate the existence of prejudice. The record demonstrates that Inspector Davis had previously denied any wrongdoing in reporting his inspections of the shrimp. The defendants argue that they believed that the receipt of gratuities constituted the extent of the inspector’s involvement. The prosecution’s proffer alerted the defendants to the inspector’s involvement in the falsification of records. The court’s willingness to allow for future cross examination of Davis remedied any possible prejudice that might have occurred. Thus, we find the record has failed to establish any outstanding prejudice to the substantial rights of appellants. United States v. Arguelles, 594 F.2d 109 (5th Cir.), cert. denied, 444 U.S. 860, 100 S.Ct. 124, 62 L.Ed.2d 81 (1979); United States v. Valdes, 545 F.2d 957 (5th Cir. 1977); United States v. Arcentales, 532 F.2d 1046 (5th Cir. 1976). Third, there is no indication that a continuance was requested or would have been justified. Finally, the overwhelming evidence, the government’s ability to have elicited the testimony without the reports, and the appropriate sanctions imposed lead us to conclude the District Court acted well within the bounds of discretion afforded him. The Red Herrings — Fourth Amendment and Posse Comitatus Claims Before trial, Treasure Isle moved to suppress any evidence connected to Inspector Klopp’s plan to specially mark the sample boxes and the subsequent testing of lots F6968 and F7008, alleging a fourth amendment violation. Hartley and Treasure Isle subsequently filed suppression motions based on the use of military personnel in the investigation of this case alleging a violation of the Posse Comitatus Act. The District Court denied these motions. The essence of the appellants’ fourth amendment claim is that by specially marking the sample boxes, Inspector Klopp executed a warrantless search. They contend that the inspector’s permissible presence on the plant was limited by contract to the inspection of the sample shrimp and did not extend to his investigation of suspected fraud. The District Court held that Hart-ley and Dell lacked the requisite “expectation of privacy” necessary to sustain a fourth amendment claim. In evaluating the corporation’s claim, the District Court reviewed the case law concerning the privacy rights of corporations and the past history of the relationship between the government inspectors and Treasure Isle. It found that under the circumstances, the corporation could not justify its asserted expectation of privacy. We agree. The government had been permitted access to areas in the Treasure Isle plant ordinarily closed to the general public. The corporation and its officers and employees were fully aware of the government’s presence and its purpose for being there. “Anyone tampering with the sample boxes under such conditions could not justifiably believe that their activities would escape the scrutiny of those charged with insuring that such activities did not occur.” United States v. Hartley, 486 F.Supp. 1348, 1355 (M.D.Fla.1980). The Posse Comitatus Act claims cause us even less concern. In ruling on the defendants’ motion, the District Court held that no violation of the Act had occurred since the military inspectors had merely exercised their responsibilities pursuant to the contract between the government and Treasure Isle in order to assure the quality of the shrimp purchased. The military aided the civilian employee in charge of the investigation only to the extent of activities normally performed in the ordinary course of their duties. The fact that that performance evolved into an investigation of an elaborate scheme devised by the defendants to circumvent the effectiveness of the government’s inspection system does not transform their activities into “military permeation of civilian law enforcement.” Id. at 1357. We agree with the District Court’s rulings on these issues. The Blowfish — The Crustacean Confrontation Problem Appellants raise a due process issue based on their alleged inability to test all the shrimp subject to the charge of nonconformity covered in the indictment. They assert a denial of fundamental fairness due to (1) the government’s consumption of breaded shrimp subsequent to suspicion of its nonconformity; (2) the government’s improper handling of the production lots F6968 and F7008 precluding the defendants from independently testing it; (3) the government’s introduction of photographs of nonconforming samples; and, (4) the government’s credibility attack on government employees who found the shrimp to conform to the military specifications. These points were raised in the appellants’ motions to dismiss, to suppress and in li-mine. The District Court held an evidentia-ry hearing, reviewed supporting memoran-da, and considered the relevant legal standards. The court concluded that the defendants had failed to establish an improper governmental motive for the intentional consumption of the shrimp and that they had failed to establish even negligent conduct on the part of the government in its preservation of shrimp for testing purposes. Record, vol. CIII, at 1869. We agree. The indictment covered shrimp sales for an extended period of time. In 1976, the Defense Investigative Service initiated the first investigation centered on alleged improprieties occurring within the inspection processes. The government terminated this investigation in December, 1976. A new investigation arose in the Spring of 1977, this time it focused on the alleged bribery of military inspectors. It was not until Inspector Klopp became suspicious in December, 1977, that a full-fledged investigation of the inspection system was undertaken. It was at this time two production lots (F6968 and F7008) became the central target for determining whether deception was being employed to supply the government with nonconforming shrimp. The two production lots were traced to their intended destinations and held for subsequent testing. In the meantime, other shipments of shrimp continued to satisfy the appetites of military personnel. The two production lots retained, including boxes possessing the special markings made by Inspector Klopp, were tested on three separate occasions by military inspectors. These inspectors provided critical prosecution testimony revealing the nonconformity of shrimp in the two production lots. Treasure Isle learned of the ongoing criminal investigation in May, 1979. At this time, the defendants contacted the government to obtain information on “the nature and extent” of the investigation. The government declined to divulge any information beyond the fact that the investigation was criminal in nature. Defendant Hartley subsequently requested the government to secure and preserve recently produced shrimp. The government advised him that most of the shrimp had been consumed in the ordinary course of use, but extended the opportunity to inspect the two production lots central to its investigation prior to the return of the indictment. Hartley travelled to Norfolk, Va., where he inspected and tested the shrimp. Dissatisfied with the testing procedures mandated by the government prosecutor, he did not take advantage of the additional opportunity to test shrimp from the samples retained in San Antonio. Upon the indictment’s issuance, the government transported the remaining samples from lots F6968 and F7008 to Tampa where the appellants were given an additional opportunity to test them. They declined to do so. Appellants contend that the government’s consumption of the shrimp and its careless handling of the remaining samples, while exhibiting pictures of samples they found nonconforming, placed them on the “horns of a dilemma,” without the ability to properly defend against the allegations presented. In addition, they argue the government further prohibited them from defending their position by attacking the credibility of government employees called as defense witnesses, who had allegedly tested the sample shrimp and obtained favorable results. In United States v. Herndon, 536 F.2d 1027 (5th Cir. 1976), the Fifth Circuit discussed due process as it relates to evidence which the government has lost or destroyed preventing the defendant from independently examining it. The court found that fundamental fairness entitles a defendant “to access to relevant and material evidence which is necessary for him to prepare his defense.” Id. at 1029. “Whether a defendant has been deprived of this right of due process will depend upon the materiality of the evidence, the likelihood of mistaken interpretation of it by government witnesses or the jury, and the reasons for its nonavailability to the defense.” Id. In applying these factors, the Fifth Circuit has developed a “bad faith” test. Absent an indication of “improper governmental motive,” the court has consistently refused to find a due process violation sufficient to warrant reversal. United States v. Gordon, 580 F.2d 827 (5th Cir.), cert. denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978); Armstrong v. Collier, 536 F.2d 72 (5th Cir. 1976). In applying this standard to the consumption claim, the District Court found that “[w]hile the consumption of the shrimp was ‘intentional’, [sic] there is no evidence that there was an improper governmental motive in this case .... [0]nce that shrimp was purchased it was not unreasonable for it to be consumed.” Record, vol. cm, at 1869. We agree. Assuming arguendo the untestable condition of the shrimp, we also agree with the District Court that appellants “have failed to sufficiently establish that there was intentional or even negligent conduct on the part of the Government agents which has caused the shrimp to be untestable for pertinent characteristics.” Id. The admission of photographs of the nonconforming shrimp is also controlled by a demonstration of bad faith on the part of the government accompanied by resulting prejudice. United States v. Loud Hawk, 628 F.2d 1139 (9th Cir. 1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1279, 63 L.Ed.2d 602 (1980). As we have already noted, we find no evidence of bad faith. Further, the overwhelming volume of testimony concerning the nonconformity of the shrimp renders the supplement of photographs insufficient to establish any true prejudice to the defendants. We perceive no error in the cross examination of government employees who found the shrimp to conform to the military specifications. The very purpose of cross examination is to allow opposing counsel to confront adverse testimony from witnesses. Nor do we find the prosecutor’s comments regarding their qualifications as inspectors beyond the scope of permissible comment. Once again the appellants have failed to convince us of an impropriety establishing cause for reversal. The Swordfish — Exclusion of Test Results One of the evidentiary issues raised by the appellants concerns the District Court’s decision to exclude test results favorable to the appellants. What at first glance appears to be a harsh ruling approaching the level of error, upon further examination is exposed as an attempt by the defendants to wield two swords. This we cannot allow. We find the trial court’s ruling proper and well within the discretion afforded it in such circumstances. In February, 1978, the government changed its inspection procedures. The military inspectors were replaced with civilian employees working for the United States Department of Commerce. Along with the change in personnel, came a change in the inspection procedures and the specifications. The new inspectors evaluated the shrimp under similar criteria for many of the same defects outlined in the military specifications; such as, veins, black spots, shells, and breading percentages. However, the standards and the means for determining conformance varied from those previously employed. During the presentation of the government’s case, the prosecutor proffered testimony of actions taken by the defendants after implementation of the new system in order to prove that they continued to provide fraudulent samples even after the change in inspection procedures. The appellants vehemently objected. They argued the proffered testimony dealt with inspection procedures outside the scope of the indictment and that the evidence would be confusing and misleading to the jury. The trial court sustained the objection under Fed.R.Evid. 403. When the defendants presented their case, they introduced seven quality audit reports prepared between June, 1976, and February, 1977, showing results favorable to Treasure Isle. They next proffered four quality audit reports of shrimp produced between May and December, 1978, as well as inspection results of shrimp produced in January, 1979. These reports, however, were based on the Commerce Department standards implemented in February, 1978; the very standards which had served as the basis for the defendants’ objections to the prosecutor’s earlier proffer. In line with its prior ruling that evidence concerning the new inspection system was beyond the charges in the indictment and would confuse the jury, the District Court refused to admit these reports. The appellants argue that in case of fraud the court should be lenient in admitting evidence of collateral transactions which tend to negate the deceptive schemes with which they are charged. While this may be true, the appellants’ argument suffers from a fatal flaw — they entered an objection which was never withdrawn. They cannot use one sword to slice into the prosecutor’s proffer by convincing the trial court of the confusing nature of the evidence and subsequently switch blades to proffer evidence afflicted with the same defect. This fish has but one sword and its blade was dulled by defense counsel’s prior objection. “The trial court is afforded broad discretion in passing on the admissibility of evidence, and its determination will not be disturbed absent a clear showing of abuse.” United States v. Dothard, 666 F.2d 498, 501 (11th Cir. 1982). The court ruled in defendant’s favor and excluded proffered evidence supporting the government’s case. Its subsequent decision to rule consistently upon encountering an identical objection by the government is not an abuse of that discretion. The Snook — Cross Examination Inspector Davis provided extensive testimony during the government’s case and has been at the forefront of many of the issues raised by the appellants. This time the appellants attack the District Court's decision to sustain Davis’s assertion of his fifth amendment privilege during cross examination. The appellants contend his refusal to answer certain questions concerning his income tax returns deprived them of their sixth amendment right of confrontation. This presents for our review a conflict between Davis’s constitutional right to remain silent and the appellants’ constitutional right to confront witnesses. “It is an inveterate principle that a defendant who takes the stand waives his fifth amendment privilege against self-incrimination at least to the extent of cross examination relevant to issues raised by his testimony.” United States v. Beechum, 582 F.2d 898, 907 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979) (citing Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958)). However, the fifth amendment’s protection is not entirely lost when the testimony sought to be elicited would simultaneously incriminate the witness. Such is the case before us. Prior to cross examination of Davis, defense counsel requested receipt of the tax forms and worksheets which Davis had brought pursuant to a subpoena duces te-cum. A bench conference was held to discuss the admissibility of the documents and to determine whether the prosecution expected Davis to invoke his fifth amendment privilege. The prosecutor told the court that he did not anticipate an assertion of the privilege because, to his knowledge, Davis intended to testify that he considered the receipt of money and shrimp from the defendants to be gifts which did not require his reporting them as income on his tax returns. Defense counsel intended to dispute the existence of these gratuities by showing that Davis had failed to report them as income. The District Court ordered Davis to give his tax returns to defense counsel for purposes of cross examination, but denied them access to Davis’s worksheets. The court further ruled that Davis could invoke his fifth amendment privilege concerning whether he had included the alleged gratuities on his tax returns. Davis testified at great length about his receipt of shrimp and money from the appellants during his term of duty at Treasure Isle. During cross examination he admitted filing tax returns for 1974, 1975, and 1976, but invoked his fifth amendment privilege when asked: “Q: Did the income tax returns that you filed for those years truly, accurately and completely reflect the income that you made during the year 1974?” Defense counsel asked the same question with respect to the years 1975 and 1976. Each time the defendant asserted his fifth amendment privilege; each time defense counsel asked the court to compel a response; and each time the court sustained Davis’s right against self-incrimination. The court subsequently instructed the jury that Davis’s assertion could be considered in determining his credibility. “The ultimate inquiry is whether the defendant has been deprived of his right to test the truth of the direct testimony.” Fountain v. United States, 384 F.2d 624, 628 (5th Cir. 1967), cert. denied, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105 (1968). Appellants argue that their inability to elicit these answers deprived them of the opportunity to rebut Davis’s direct testimony concerning his receipt of gratuities. In view of the admission of the tax returns themselves and defense counsel’s closing argument, we do not find that the defendants were deprived of testing the truth. See United States v. Tolliver, 665 F.2d 1005 (11th Cir. 1982). The Snapper — Prosecutorial Comment The fifth amend