Full opinion text
KRAVITCH, Circuit Judge: Appellants Constantine Yamanis, Michael Yamanis, Vincent Calise and George Thomas Darby were convicted and sentenced for their involvement in a large drug smuggling operation. The issues presented on appeal are: (1) whether Constantine Yamanis’ right to a speedy trial under 18 U.S.C. § 3161(c)(1) was violated; (2) whether the trial court’s denying Constantine Yamanis’ motions for continuance constituted error under 18 U.S.C. § 3161(c)(2) or an abuse of discretion; (3) whether Constantine Yamanis was denied a fair and impartial trial as a result of the trial court’s jury instructions, evidentiary rulings and discovery rulings; (4) whether the sentences imposed on Constantine Yamanis and Michael Yamanis are so disproportionate to the crime as to constitute cruel and unusual punishment, whether Constantine Yamanis’ indigency rendered the imposition of “stand committed” fines violative of the fifth amendment and whether the trial court erred in imposing cumulative fines; (5) whether the trial court lacked personal jurisdiction over Michael Yamanis due to the circumstances of his arrest; (6) whether the presence of information of disputed accuracy in the presentence report violated Michael Yamanis' due process rights; (7) whether Calise was improperly sentenced as a dangerous special drug offender under 21 U.S.C. § 849 because of an untimely notice, an inadequate notice, an insufficiently onerous standard of proof or prosecutorial vindictiveness; (8) whether the trial court erred in prohibiting Calise from interviewing the jurors after trial; (9) whether there is sufficient evidence of Darby’s guilt to support the conviction; and (10) whether the evidence adduced by the government established multiple conspiracies rather than a single conspiracy such that there was a variance between the allegations in the indictment and the proof at trial prejudicial to Darby or such that the trial court abused its discretion in denying Darby’s motions for severance. We affirm in all respects. FACTS AND PROCEEDINGS BELOW Between 1975 and 1982, Constantine Yamanis and Michael Yamanis, brothers, headed an extensive marijuana and hashish importation organization. The bill of particulars filed by the government listed, and the evidence adduced by the government tended to show, ten major smuggling episodes for which this organization was responsible, to wit: (1) the importation of a multi-ton shipment of marijuana at Moss Landing, California in late June and early July 1981 (the Kyoto episode); (2) the importation of a multi-ton shipment of marijuana on the coast of Oregon in May 1981, and the transportation thereof from Oregon to California (the Oregon episode); (3) the attempted transportation of two and one half tons of marijuana from Florida to Texas in December 1980 (the attempted transportation episode); (4) the importation of a seven-ton load of marijuana aboard a DC-6 aircraft at Bascomb, Florida in July 1980, and the transportation thereof from Florida to Texas (the DC-6 episode); (5) the importation of a multi-ton shipment of marijuana on the west coast of Florida in December 1978 (the Draco episode); (6) the attempted importation of a multiton shipment of hashish in late 1977 and early 1978 (the BP-25 episode); (7) the importation of a 14-ton shipment of marijuana at Gloucester, Massachusetts in November 1977 (the Willig episode); (8) the importation of a multi-ton shipment of marijuana at Gloucester, Massachusetts in late May and early June 1977 (the Gretchen episode); (9) the attempted importation of a 15-ton shipment of marijuana in October and November 1976 (the Fylke episode); and (10) the importation of a seven-ton shipment of marijuana at Ambrose Light, New York in early 1976 (the Patria episode). The Yamanis organization was also involved in several smaller drug incidents. The evidence at trial indicated that the Yamanises were engaged not only in the importation and off-loading of marijuana, but also in its transportation, distribution and sale. In the course of their dealings, they procured the assistance of public officials, both in this country and abroad, exchanged hostages to ensure adherence to bargains and otherwise resorted to threats of violence. Their operation literally spanned the globe, from Florida, California and New York to Colombia and Pakistan. And from their drug smuggling activities, they reaped millions of dollars. Vincent Calise was one of the Yamanises’ chief lieutenants. Having joined the organization in late 1975 or early 1976, Calise actively participated in several of the large drug transactions recounted above. In addition to performing relatively minor tasks, he often assumed a supervisory role, for example, in directing personnel engaged in off-loading. The Yamanises were also assisted by Tom Darby. Specifically, Darby participated in the DC-6 episode. On January 7, 1982, the Grand Jury for the Northern District of Florida returned a five-count indictment charging appellants and seven others with violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 841-852, and the Controlled Substances Import and Export Act, 21 U.S.C. §§ 951-966. Count I charged Constantine Yamanis and Michael Yamanis with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848. Count II charged Calise and Darby with conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. §§ 841, 846. Count III charged Calise and Darby with conspiracy to import marijuana in violation of 21 U.S.C. §§ 952, 963. Count IV charged all four appellants with importation of marijuana in violation of 21 U.S.C. § 952. And Count V charged all four appellants with possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841. In June 1982, Constantine Yamanis, Calise and Darby were tried by a jury before Judge Lynn Higby of the Northern District of Florida. Jury selection occurred on June 1, and the trial commenced on June 7. On June 15, the jury returned verdicts finding Constantine Yamanis guilty on Counts I, IV and V, Calise guilty on Counts II, III and V, and Darby guilty on Count III. Following his transportation from Honduras to Florida in July 1982, Michael Yamanis was tried by a jury, again before Judge Higby, in October 1982. He was found guilty on Counts I, IV and V. Constantine Yamanis and Michael Yamanis each received a 60-year prison term and a $100,000 fine on Count I, a five-year prison term, a $15,000 fine and two-year special parole term on Count IV, and a five-year prison term, a $15,000 fine and a two-year special parole term on Count V. The two five-year terms are to run consecutively to each other and concurrently with the 60-year term. The total fine is $130,-000. Calise was sentenced to a five-year prison term on Count II, a five-year prison term on Count III, and a four-year prison term on Count V, all to run consecutively; he was also fined $15,000 on each of the three counts. Having been found to be a dangerous special drug offender under 21 U.S.C. § 849, Calise received an additional prison term of 25 years, to run concurrently with the other prison terms. As a result of his conviction on Count III, Darby was sentenced to five-years’ imprisonment and was fined $15,000. This appeal ensued. CLAIMS ' I. CONSTANTINE YAMANIS: STATUTORY SPEEDY TRIAL Constantine Yamanis contends that because he was denied the right to a speedy trial in violation of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, the district court should have dismissed his indictment pursuant to section 3162(a)(2) of the Act. Section 3161(c)(1) essentially provides a 70-day period within which a defendant must be brought to trial: In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. 18 U.S.C.A. § 3161(c)(1) (Supp.1984). Under section 3161(h), however, certain periods of delay may be excluded when calculating the 70-day period: (h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence: (1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to— ****** (F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion; % * Jje * * sfs (J) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court. (7) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted. 18 U.S.C.A. § 3161(h) (Supp.1984). Our opinion in United States v. Stafford, 697 F.2d 1368 (11th Cir.1983), deals exhaustively with these excludable time provisions. Reading subsections (1)(F) and (J) together, the court defined three categories of excludable periods. “The first is when a pretrial motion requires a hearing. If a hearing is held, (F) by its terms excludes without qualification the entire period between the filing of the motion and the conclusion of the hearing.” Id. at 1373 (footnote omitted). “The second situation in (F) applies to motions which result in ‘prompt disposition.’ For these motions, the period of exclusion begins at the filing of the motion and ends at the point of its ‘prompt disposition.’ ” Id. “Prompt disposition” is defined as disposition within 30 days. Id. at 1373-74. “(F) apparently does not exclude time in a third situation — namely, where the motion requires no hearing and its disposition is not prompt. In this situation, however, (J) permits an exclusion of up to 30 days from the time the motion is ‘actually under advisement’ by the court. This period is measured from the time that the court receives all the papers it expects from the parties.” Id. (footnote omitted). The Stafford court also commented on subsection (7): Congress enacted this provision recognizing that multidefendant trials are desirable because they promote efficiency in the disposition of trials. If the Act imposed rigid time limits without applying exclusions to codefendants, courts would be forced to “grant severances which would otherwise not be required.” United States v. Varella, 692 F.2d 1352, 1359 (11th Cir.1982) (quoting legislative history of Speedy Trial Act). For this reason, the rule in this Circuit is that the delay caused by one defendant is excludable as to his codefendants. Id.; United States v. Davis, 679 F.2d 845, 849-50 (11th Cir. 1982). This rule extends to delay caused by the filing of pretrial motions. Varella, 692 F.2d at 1358. See also United States v. Edwards, 627 F.2d 460, 461 (D.C.Cir.), cert. denied, 449 U.S. 872, 101 S.Ct. 211, 66 L.Ed.2d 92 (1980); United States v. McGrath, 613 F.2d 361, 366 (2d Cir.1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2946, 64 L.Ed.2d 827 (1980). 697 F.2d at 1372; see United States v. Zielie, 734 F.2d 1447, 1453 (11th Cir.1984). As noted in United States v. Davis, 679 F.2d 845 (11th Cir.1982), cert. denied, 459 U.S. 1207, 103 S.Ct. 1198, 75 L.Ed.2d 441 (1983), however, subsection (7) contains two requirements: first, the period of delay caused by the codefendant must be reasonable, and second, as to the codefendant the time for trial must not have run and a motion for severance must not have been granted. Id. at 849-50. To summarize, we must determine (1) whether the period between the filing of the indictment or the first appearance of the defendant, whichever came later, and the beginning of the trial exceeds the 70-day period under section 3161(c)(1); (2) if so, whether the period of delay excludable under section 3161(h) equals or exceeds the difference between the pretrial period and the 70-day period; and (3) if so, whether the period of delay excluded under section 3161(h)(7) is reasonable and otherwise qualifies for exclusion. Here 118 days elapsed between Yamanis’ arraignment on February 3,1982, which followed the filing of the indictment on January 7, 1982, and jury selection on June 1, 1982; thus the statutory limit of 70 days is exceeded by 48 days. At least five days are excludable under section 3161(h)(1)(F). On May 26, Yamanis filed a motion for continuance, which was denied on June 1. As this denial constituted a prompt disposition of the motion, the six-day period from May 27 to June 1, inclusive, falls within the second category defined in Stafford. Under section 3161(h)(7), 60 additional days, perhaps more, may be excluded. Codefendant Darby filed a motion for severance on February 24; on May 6, the motion was denied without a hearing. Applying the 30-day limitation under section 3161(h)(1)(J), governing pretrial motions not promptly disposed of, see Stafford, 697 F.2d at 1374, we may exclude the 30 days from February 25 to March 26, inclusive. Codefendant Chiari’s discovery motions, filed on March 11, were disposed of without a hearing on May 6. Having already excluded the period from March 12 through March 26, and again applying section 3161(h)(1)(J), we may exclude 30 of the remaining 41 days between March 27 and May 6. Since the number of excludable days — no less than 66 — easily exceeds 48, we must affirm if the period of delay attributed to Yamanis under section 3161(h)(7) is reasonable and otherwise qualifies for exclusion. It is undisputed that with respect to codefendants Darby and Chiari the statutory speedy trial periods had not been exhausted prior to trial. And, of course, the trial of neither codefendant had been severed from that of Yamanis. The sole question, then, is whether the period of delay excluded under section 3161(h)(7)— more precisely, the 42-day period representing the difference between the 48-day period of excess delay and the six-day period consumed by Yamanis’ motion for continuance — is reasonable. We conclude that it is. In addressing this question, we employ alternative views of reasonableness, for the precise nature of the reasonableness inquiry is not entirely clear from the statute and case law. Under one approach, reasonableness is determined with reference to the totality of the circumstances prior to trial. Thus a period of delay is reasonable under section 3161(h)(7) if it appears necessary in order for the trial court to dispose of the underlying motions, cf. United States v. Varella, 692 F.2d 1352, 1358 (11th Cir.1982) (equating reasonableness with “the propriety of delay as to those defendants whose motions were pending”), cert. denied, — U.S. -, 103 S.Ct. 3542, 77 L.Ed.2d 1392, — U.S. -, 104 S.Ct. 127, 78 L.Ed.2d 124 (1983), “for the court to conduct previously scheduled trials,” Davis, 679 F.2d at 850, or “for [codefendants] to obtain new counsel,” id. We cannot say that the 42-day period at issue was not necessary in order for the district court thoroughly to consider and rule on the codefendants’ motions. In addition, there were significant problems of representation, particularly with regard to Yamanis and Calise, which justified further delay. Reasonableness may also be judged in terms of prejudice to the defendant. The Davis court, for instance, emphasized that the defendant’s “ability to defend himself was not prejudiced by this delay.” 679 F.2d at 850. Similarly, there is no contention, nor is there any indication in the record, that the 42-day delay in this case impaired Yamanis’ defense at trial. Yamanis does argue that he was prejudiced in that he suffered prolonged pretrial incarceration. We conclude, however, that any prejudice in this sense was insufficient to render the period of delay unreasonable. Finally, examination of the periods of delay held excludable under section 3161(h)(7) in other cases confirms our conclusion that the 42-day period in question was not unreasonable. The court determined that a 59-day delay was reasonable in Davis, 679 F.2d at 850, while in Varella, the court made a similar determination in connection with a 4-month delay, 692 F.2d at 1359. Finding the period of delay excluded in this case reasonable in every respect, we hold that Yamanis’ statutory right to a speedy trial was not violated and that the district court properly refused to dismiss the indictment. II. CONSTANTINE YAMANIS: CONTINUANCE Constantine Yamanis challenges the district court’s denials of his motions for continuance on two grounds: first, that the denials were erroneous under 18 U.S.C. § 3161(c)(2), and second, that the denials constituted an abuse of discretion as a result of which he was denied due process. Yamanis was arraigned on February 3, 1982, at which time he was represented by Stephen Heiser, a retained attorney. On May 10, Heiser withdrew due to a conflict of interest, and the district court appointed the Public Defender to represent Yamanis. Because of a conflict of interest on the Public Defender’s part, the court appointed E.C. Deeno Kitchen, a private attorney, as counsel for Yamanis on May 11. Jury selection took place on June 1, and the trial was recessed until June 7. Yamanis moved for continuances on May 26 and June 7; both motions were denied. A. Error Under 18 U.S.C. § 3161(c)(2) Section 3161(c)(2) of the Speedy Trial Act provides: Unless the defendant consents in writing to the contrary, the trial should not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se. 18 U.S.C.A. § 3161(c)(2) (Supp.1984) (emphasis added). Yamanis asserts that the statute “contemplates the date when a defendant first appears through an attorney who undertakes the responsibility for preparing the case for trial.” Terming Heiser’s representation at the arraignment a “technical” appearance, he urges us to treat Kitchen’s appointment on May 11 as the first appearance. In support of his claim, Yamanis cites the Ninth Circuit’s decision in United States v. Daly, 716 F.2d 1499 (9th Cir. 1983), cert. dismissed, — U.S. -, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984). There the court examined the legislative history underlying section 3161(c)(2) and determined that “the provision was meant to guarantee a minimum period of thirty days for the preparation of the defense.” Id. at 1504. Underscoring “Congressional concern ... that a defendant be given a reasonable time to obtain counsel and that counsel be provided a reasonable time to prepare the case,” id. at 1505 (emphasis in original), the court stated: To fulfill this policy, the 30-day period should commence only after the indictment or information has been filed and made public and the defendant has first appeared with counsel engaged or appointed to represent him at trial. We therefore hold that the 30-day period begins to run when an attorney appears on a defendant’s behalf after the indictment or information has been filed, unless there is an indication that the attorney is appearing only for a limited purpose and will not further represent that defendant at trial. If the attorney has been appointed to represent the defendant only for a specific pre-arraignment purpose or at the time of his initial appearance or prior to the filing of the indictment or information disavows his intent to represent the defendant further, the period will not commence because the statutory purpose of the 30-day delay would not be fulfilled. Id. At the bail hearing in Daly, one of the appellants was represented by an attorney “appointed only for that purpose,” id; two other appellants were represented by attorneys who “undertook preparation of the defense from the date of that hearing,” id. Because the former appellant’s attorney was “explicitly appointed,” id. at 1504, for the limited purpose of representing him at the bail hearing, the court held that the 30-day period did not commence until the later appearance of appointed trial counsel. Id. at 1505. We are reluctant to adopt the Ninth Circuit’s reading of section 3161(c)(2), for it ignores the plain meaning of the phrase “first appears through counsel.” When employing the term “first,” Congress presumably did not have subsequent appearances in mind. More important, the absence of any qualification on the term “counsel” indicates that Congress did not have a particular type of counsel in mind. We find no basis in the language of the statute for concluding that by “counsel” Congress meant “trial counsel,” “last retained or appointed counsel,” or “counsel engaged or appointed to represent [the defendant] at trial.” Nor does the legislative history of the provision require such a conclusion. It is clear, as the Daly court pointed out, that Congress intended section 3161(c)(2) to provide a minimum period for preparation. It is equally clear, however, that this measure alone, even as interpreted in Daly, cannot ensure adequate preparation time in every case, and that it was not intended to do so. Recognizing that the statute only partially addresses “Congressional concern” about the adequacy of preparation and that Congress inevitably relied on the trial judge’s discretion to grant a continuance where necessitated by the circumstances of counsel’s retention or appointment, we conclude that a literal construction of section 3161(c)(2) is consistent with its legislative purpose. For purposes of section 3161(c)(2), Yamanis first appeared through counsel at his arraignment on February 3. Inasmuch as the trial commenced some four months later, we conclude that the statutory requirement was satisfied. Accordingly, we hold that the district court did not err under section 3161(c)(2) in denying Yamanis’ motions for continuance. B. Abuse of Discretion Resulting In Denial of Due Process In Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940), the Supreme Court observed: In the course of trial, after due appointment of competent counsel, many procedural questions necessarily arise which must be decided by the trial judge in light of facts then presented and conditions then existing. Disposition of a request for a continuance is of this nature and is made in the discretion of the trial judge, the exercise of which will ordinarily not be reviewed. Id. at 446, 60 S.Ct. at 322; see Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). As the predecessor of this court pointed out in United States v. Uptain, 531 F.2d 1281 (5th Cir.1976): A motion for a continuance is addressed to the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless there is a showing that there has been an abuse of that discretion. This issue must be decided on a case by case basis in light of the circumstances presented, particularly the reasons for continuance presented to the trial court at the time the request is denied. Id. at 1285-86 (citations omitted); see United States v. Marquardt, 695 F.2d 1300, 1302 (11th Cir.), cert. denied, 460 U.S. 1093, 103 S.Ct. 1793, 76 L.Ed.2d 360 (1983); United States v. Jimenez-Diaz, 659 F.2d 562, 567 (5th Cir. Unit B 1981), cert. denied, 456 U.S. 907, 102 S.Ct. 1754, 72 L.Ed.2d 164 (1982). The reasons for a continuance asserted below generally relate to the adequacy of the time available for preparation. In support of the May 26th motion, defense counsel noted that he had been appointed 15 days earlier and that the trial was scheduled to commence in seven days and to recommence in 14 days. Emphasizing that the case was “enormously complex” and “most serious in nature,” that discovery had not been completed and that his client’s incarceration limited opportunities to confer, counsel declared, “considerable work in the way of investigation and preparation must yet be done prior to being aidequately prepared for trial.” In the Uptain opinion, the court listed a host of considerations bearing on a claim of this sort: We have deemed the following factors highly relevant in assessing claims of inadequate preparation time: the quantum of time available for preparation, the likelihood of prejudice from denial, the accused’s role in shortening the effective preparation time, the degree of complexity of the case, and the availability of discovery from the prosecution. We have also explicitly considered the adequacy of the defense actually provided at trial, the skill and experience of the attorney, any pre-appointment or pre-retention experience of the attorney with the accused or the alleged crime, and any representation of the defendant by other attorneys that accrues to his benefit. 531 F.2d at 1286-87 (footnotes omitted). Applying the pertinent factors to the facts presented, we conclude that the district court did not abuse its discretion in denying Yamanis’ motions for continuance. Though relatively straightforward from a legal standpoint, the case was factually complicated, to be sure. And inasmuch as the withdrawals of his previous counsel were occasioned by conflicts of interest, Yamanis was not entirely responsible for shortening his last appointed counsel’s preparation time. On the other hand, as the district court stated “for the record” at the hearing regarding the appointment of counsel on May 10, 1982, “it would appear that all this confusion concerning lawyers has been generated at least in part by the defendants, notwithstanding the warning of the court back in February of 1982 that you should get you a lawyer and get on with the defense of your case.” In addition, Yamanis’ trial counsel was afforded considerable time for preparation: over three weeks elapsed between Kitchen’s appointment on May 11 and jury selection on June 1, and Kitchen had almost a full month before the first witness testified on June 7. With respect to discovery from the prosecution, the district court ordered the government to furnish Kitchen with all previously disclosed material. Even if, as Kitchen asserted on May 26, some discovery material had not yet been made available, there is no indication that the government did not subsequently comply or that the government’s noncompliance was prejudicial. Turning to the adequacy of the defense actually provided at trial, we note that Yamanis identifies no seriously prejudicial flaws in Kitchen’s performance which may be attributed to the absence of a continuance. And although he had no previous familiarity with his client or the crimes, Kitchen was an experienced criminal trial attorney, even by Yamanis’ account. In addition, Kitchen evidently had the benefit of the earlier representation of Yamanis and his codefendants by other lawyers, for the district court ordered the clerk to furnish him with all pleadings, including discovery motions and responses, and according to the May 26th motion, he consulted with several attorneys of record. Departing from the considerations cataloged in Uptain, we recognize that the district court was considerate of Yamanis’ interests in its scheduling of the trial and in its handling of the case in general. When allowing Heiser to withdraw as counsel, the court immediately granted a three-week continuance. Even though his eligibility for appointed counsel was questionable, the court, “in an abundance of caution, declared Mr. Yamanis entitled to appointed counsel and temporarily appointed the Public Defender to represent him.” As pointed out above, when Kitchen was substituted as counsel, the court arranged for him to receive all discovery material and pleadings. Having reviewed the particular circumstances of this case, we conclude that Yamanis has failed to make the requisite showing that the absence of a continuance seriously prejudiced him. See Jimenez-Diaz, 659 F.2d at 567. Hence we hold that the district court’s denials of his motions for continuance did not constitute an abuse of discretion and were not so arbitrary as to violate the due process clause. III. CONSTANTINE YAMANIS: FAIR AND IMPARTIAL TRIAL Combining several discrete claims under a single heading, Constantine Yamanis maintains that he was denied a fair and impartial trial as guaranteed by the fifth and sixth amendments. Addressing these claims separately and together, we find no reversible error. A. Jury Instructions As part of its preliminary instructions to the jury, the district court stated: You will have ample time to deliberate your verdict once everything is finished. That is, as you well know, there is always two sides to every story. For that reason, you should keep an open mind and not form or express any opinions about the case. Yamanis argues that this instruction “had the effect of shifting the burden to Appellant to prove his innocence ... and ‘challenged’ the accused to offer evidence (or at least ‘explain’ his ‘side of the story’ to the jury).” Since Yamanis failed to object to the instruction at trial, we review this claim under the plain error standard. Fed.R.Crim.P. 52(b); see United States v. Wolfe, 611 F.2d 1152, 1153 (5th Cir.1980). Although language other than “there is always two sides to every story” might have been preferable, read in context, the passage quoted merely exhorts the jury not to decide the case prematurely. Given that the jury was repeatedly charged on the government’s burden of proof, we conclude that the instruction in question was not plainly erroneous. B. Evidentiary Rulings Yamanis contends that the testimony of three government witnesses was inadmissible under Rules 403 and 404(b) of the Federal Rules of Evidence. Dominick Grillo, a New York City narcotics detective, testified to a meeting at which Michael Yamanis agreed to sell him 35 tons of marijuana. Constantine Yamanis asserts that the evidence was irrelevant and prejudicial, and therefore should have been excluded under Rule 403. Again, as Yamanis made no objection at trial, we apply the plain error standard. Fed.R.Crim.P. 52(b); see Wolfe, 611 F.2d at 1153. To the extent that the event described by Grillo may be viewed as an overt act in furtherance of the charged conspiracies or as one in a continuing series of violations for continuing criminal enterprise purposes, the testimony appears to have been relevant. Moreover, insofar as Constantine Yamanis was not directly implicated in the transaction, the testimony was not particularly prejudicial. We therefore conclude that the admission of Grillo’s testimony did not constitute plain error under Rule 403. Yamanis next challenges the testimony of Bill Gant regarding codefendant Harris’ involvement in cocaine trafficking. Yamanis argues that the evidence was used to prove his character in order to show his propensity to commit the crimes charged and thus was inadmissible under Rule 404(b). Gant testified that he had known Harris for twelve years and that he had transported cocaine and money to and from Miami for Harris on numerous occasions starting in the spring of 1980. In his brief on appeal, Yamanis asserts, “The implication of all this testimony ... was that Appellant and his brother ... were behind each and every drug transaction which the witness described.” However, at no point in his testimony did Gant identify Yamanis as having been involved in the cocaine operation. Indeed, Yamanis was implicated only in that Harris and others involved in the cocaine operation were also associated with the Yamanis marijuana importation organization. Because Gant’s testimony regarding the cocaine operation was not probative of Yamanis’ character, we conclude that the disputed evidence is not covered by the prohibition in Rule 404(b) and hence was not inadmissible with respect to Yamanis. The third government witness whose testimony Yamanis challenges is Spiro Anthanasiades. He testified that while in jail in Miami, he was visited by a lawyer associated with the Yamanises. The prosecutor and the witness then had the following exchange: Q. What did he tell you? What was the message? A. He told me to be quiet, take it easy, because he say they know where my brother is at. Q. Who knows where your brother is at? A. He didn’t say, sir, but he didn’t mention any names. Q. What was your response to that? A. I got mad at him. At this point, counsel for appellant Darby moved for a mistrial. Although there was no such objection at trial, Yamanis now maintains that Anthanasiades’ testimony was inadmissible hearsay. In particular, he asserts that the lawyer’s statement was not an admission by a party-opponent under Rule 801(d)(2)(D) and (E) since it neither concerned a matter within the scope of the lawyer’s agency, if any, nor furthered the conspiracy. We need not address the applicability of the non-hearsay provisions of Rule 801(d)(2), for we conclude that the statement in question does not fall within the basic definition of hearsay in Rule 801(c). In order to constitute hearsay, a statement must be “offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). Here the matter asserted by the out-of-court declarant was that “they” knew where the witness’ brother was. It is evident that the statement was offered by the government not to establish that the Yamanises actually knew the whereabouts of Anthanasiades’ brother, but to show the impact of the making of the statement, whether true or false, on Anthanasiades’ inclination to tell the truth. For this reason, Anthanasiades’ testimony was not inadmissible under the hearsay rule. Yamanis also contends that the testimony should have been excluded under Rule 408. As suggested above, the government evidently introduced the conversation between Anthanasiades and the lawyer in an effort to bolster the witness’ credibility, which had been called into question on cross-examination. The government presumably sought to demonstrate the witness’ resolve to testify truthfully as reflected by his angry response to the lawyer’s statement. Although the conversation might have been regarded by the jury as having instead motivated the witness to lie, either in the government’s favor or in the defendant’s favor, and thus was not conclusive on the issue of credibility, we cannot say that the testimony was irrelevant. Insofar as its probative value was not substantially outweighed by any prejudicial effect, the testimony was not inadmissible under Rule 403. C. Discovery Rulings Finally, Yamanis maintains that the district court erred in refusing defense counsel access to material purportedly discoverable under the Jencks Act, 18 U.S.C. § 3500. The material at issue consisted of 19 pages of a statement given by Charles Etheridge, a government witness. After inspecting the statement in camera, the court found that “the matters in there are irrelevant and immaterial and does not contain any impeachment material, either Brady or Giglio, and so that I find that as a matter of fact the government’s refusal to disclose the matter as Jencks Act material is well taken.” “It is the primary duty of the trial judge to determine the producibility of a statement under the Jencks Act. Although his ruling is subject to appellate review, it is sustainable unless clearly erroneous.” Matthews v. United States, 407 F.2d 1371, 1376 (5th Cir.1969) (citation omitted), cert. denied, 398 U.S. 968, 90 S.Ct. 2177, 26 L.Ed.2d 554 (1970); see United States v. Cathey, 591 F.2d 268, 274 (5th Cir.1979); Lloyd v. United States, 412 F.2d 1084, 1088 (5th Cir.1969). Having examined Etheridge’s statement, we cannot say that the district court’s findings are clearly erroneous. Indeed, we are in complete agreement with the court’s ruling. Viewing the district court’s instructions and various rulings in combination, we hold that Constantine Yamanis was not denied a fair and impartial trial. IV. CONSTANTINE YAMANIS AND MICHAEL YAMANIS: SENTENCES Constantine Yamanis and Michael Yamanis raise three claims in connection with their sentences. Each contends that his sentence is barred by the eighth amendment in that it is disproportionate to his crime. In addition, Constantine Yamanis argues that by virtue of his indigency, the imposition of “stand committed” fines violated the due process clause. And according to both, the district court erred in imposing fines exceeding the maximum under 21 U.S.C. § 848. We reject all of these claims. A. Proportionality The range of penalties for engaging in a continuing criminal enterprise are set out in 21 U.S.C. § 848(a). Section 848(a)(1), under which appellants were sentenced, provides: Any person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 10 years and which may be up to life imprisonment, to a fine of not more than $100,000, and to the forfeiture prescribed in paragraph (2). 21 U.S.C.A. § 848(a)(1) (1981). In addition to their sentences for importation (Count IV) and possession (Count V), appellants were each sentenced to 60 years’ imprisonment and fined $100,000 for engaging in a continuing criminal enterprise (Count I). Underscoring their advanced years (late forties and late fifties) and the unlikelihood of parole, they contend that their punishment does not fit their crime and urge us to remand for resentencing. We note initially that the scope of our review is greatly restricted. As the Supreme Court made clear in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), it is not normally the role of an appellate court to second-guess the trial judge’s determination of an appropriate sentence. Rather, an appellate court must determine only whether the sentence imposed is so grossly disproportionate to the crime as to constitute cruel and unusual punishment. Id. at 3009 n. 16. As the Court pointed out in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), “Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.” Id. at 272, 100 S.Ct. at 1138; see also United States v. Phillips, 664 F.2d 971, 1043 (5th Cir. Unit B 1981) (affirming sentences of 64, 53 and 33 years under section 848 and other provisions with observation that “proportionality principle might be applicable in an ‘extreme example’ ”), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982); United States v. Valenzuela, 646 F.2d 352, 354 (9th Cir.1980) (affirming life sentence under section 848 with similar observation). Furthermore, we are mindful of the Supreme Court’s admonition in Solem: Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals. 103 S.Ct. at 3009. In a footnote, the Court added: In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court will rarely be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate. Id. at 3009 n. 16 (emphasis added). Nevertheless, in our opinion this is one of those rare cases in which “extended analysis” of a proportionality claim may be useful, if not required. We reach this conclusion partly because section 848, like the recidivist statutes involved in Rummel and Solem, prescribes enhanced penalties in addition to those imposed for the underlying substantive crimes. We also note that this court has not heretofore conducted a Solem proportionality analysis in the context of section 848. In light of both the unusual nature of section 848 and the lack of precedent in this circuit on the proportionality issue, we proceed to apply the Solem proportionality analysis to this case. In Solem, the Court specified three factors governing proportionality review: [A] court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions. 103 S.Ct. at 3010-11. Applying these factors in the instant case, we conclude that appellants’ sentences comport with the eighth amendment. The 60-year prison terms which appellants received under section 848 certainly constitute severe punishment. The crime for which they were sentenced, however, was particularly grave. In reaching this conclusion, we focus not only on the offense as generally defined in the statute, but also on the offense as actually committed by appellants. With respect to both, we apply several of the generally accepted criteria for determining the gravity of an offense articulated in Solem, including “the harm caused or threatened to the victim or society,” 103 S.Ct. at 3011, “[t]he absolute magnitude of the crime,” id., the use of “violence or the threat of violence,” id., “the culpability of the offender,” id., whether the defendant was the principal, and whether the crime was completed, id. The general offense, engaging in a continuing criminal enterprise, is the most serious of all the drug-related offenses proscribed in Title 21. First, to the extent that it entails a series of violations — not an isolated transaction — the concerted effort of at least six persons — not the independent action of a single individual or the concerted effort of as few as three persons — and, especially, the element of organization, the offense is more serious than the others in that it poses a greater danger to society. The offense is also more serious in terms of the defendant’s culpability, for the statute requires that the defendant occupy an organizational, supervisory or managerial position. Indeed, the gravity of the offense is reflected by its role in the sentencing scheme established by the Comprehensive Drug Abuse Prevention and Control Act of 1970. The legislative history of the Act reveals that [t]his section 408 [21 U.S.C. § 848] is the only provision of the bill providing minimum mandatory sentences, and is intended to serve as a strong deterent to those who otherwise might wish to engage in the illicit traffic, while also providing a means for keeping those found guilty of violations out of circulation. H.Rep. No. 1444, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.Code Cong. & Ad.News 4566, 4576. Although section 848 could perhaps be applied to “mild” criminal activity, id. at 4652, á review of the record confirms that the actual continuing criminal enterprise in which appellants were engaged was severe. With respect to the harm to society, we are struck by the immensity of the Yamanis organization. The operation was worldwide in scope, resulting in the importation, by sea and by air, of marijuana on both coasts and the subsequent transportation and distribution of marijuana in several states. The major smuggling incidents number ten or more, and the persons with whom appellants acted in concert number in the dozens, if not hundreds. Moreover, in the course of seven years appellants dealt not with relatively minor amounts of marijuana and hashish, but with literally tons of it. Thus in terms of magnitude, the crime was most serious. The offense at issue was also marked by the use of violent threats. A number of witnesses testified to appellants’ practice of exchanging hostages to guarantee the cooperation of other parties. Specifically, they testified that appellants threatened to kill or maim their hostages in the event of complications. Witnesses also related incidents in which appellants’ subordinates were threatened with violence. In addition to such threats, the enterprise evidently entailed the corruption of public officials here and in other countries. As for culpability, the evidence consistently points to appellants as the peerless leaders of the organization. Nor were their roles passive ones, for they were involved in the direction of all but the most ministerial aspects of the operation. It follows, of course, that neither appellant was a mere accessory after the fact, and although not every importation episode was entirely successful, appellants’ overall crime was by no means a mere attempt. From our examination of the statute and the facts of this case, we conclude that the offense in question was of the utmost gravity. At this point, we do not view the punishment imposed incommensurate. Turning to the second step of the analysis in Solem, we consider “the sentences imposed on other criminals in the same jurisdiction.” 103 S.Ct. at 3011. For this purpose, we are concerned with the sentences imposed not just in the Northern District of Florida, but in the jurisdiction of the United States as a whole. Considering first the sentences imposed for other federal offenses, we find no indication that the punishment at issue is excessive. Specifically, we can identify no crime which is necessarily more serious, but which is subjeet to the same or a less severe penalty. As for the sentences imposed on other defendants under section 848, again we find no significant disparity. Indeed, in several recent cases involving continuing criminal enterprises comparable to the one before us the defendants received prison terms in the same range as those given appellants. See, e.g., United States v. Garrett, 727 F.2d 1003 (11th Cir.1984) (defendant sentenced to 40 years’ imprisonment under section 848); United States v. Kirk, 723 F.2d 1379 (8th Cir.1983) (defendant sentenced to 40 years’ imprisonment under section 848), cert. denied, — U.S. -, 104 S.Ct. 1717, 80 L.Ed.2d 189 (1984); Phillips, supra (defendants sentenced to 64, 53 and 33 years’ imprisonment under section 848 and other provisions); United States v. Webster, 639 F.2d 174 (4th Cir.) (defendant sentenced to 50 years' imprisonment under section 848), cert. denied, 454 U.S. 857, 102 S.Ct. 307, 70 L.Ed.2d 152 (1981), modified, 669 F.2d 185 (4th Cir.1982); Valenzuela, supra (defendant sentenced to life imprisonment under section 848); United States v. Sperling, 560 F.2d 1050 (2d Cir.1977) (defendant sentenced to life imprisonment under section 848); United States v. Jeffers, 532 F.2d 1101 (7th Cir.1976) (defendant sentenced to life imprisonment under section 848), rev’d on other grounds, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). To be sure, these cases are not factually identical to the instant case. And there may have been some more serious violations of section 848 which have been less severely punished. Our review of the cases, however, indicates that the sentences imposed on appellants are not so out of line with those imposed on other offenders as to constitute cruel and unusual punishment. The last factor mentioned in Solem relates to “the sentences imposed for commission of the same crime in other jurisdictions.” 103 S.Ct. at 3011. Due to the unique nature of section 848, consideration of this factor is difficult, if not impossible. In short, given the key role played by the continuing criminal enterprise provision in the federal drug enforcement scheme and the unparalleled comprehensiveness of that scheme, it is doubtful that “the same crime” exists in “other jurisdictions.” In any event, our examination of comparable state-law offenses reveals no serious disparity indicating that appellants’ sentences are excessive. See, e.g., Fla.Stat.Ann. § 775.084(4)(a) (1976) (habitual felony offender punishable by 10 years’ to life imprisonment); Fla.Stat.Ann. § 893.13(1)(b) (Supp.1984) (possession or sale of over 10 grams of narcotics punishable by up to 30 years’ imprisonment); Fla.Stat.Ann. § 893.13(1)(c)(1) (Supp.1984) (delivery of narcotics to minor punishable by up to 30 years’ imprisonment); Fla.Stat.Ann. § 895.04 (Supp.1984) (RICO violation punishable by up to 30 years’ imprisonment). On the basis of the foregoing analysis, we hold that appellants’ sentences under section 848 are not so grossly disproportionate to their crime as to violate the eighth amendment. B. “Stand Committed” Fines At the time of sentencing, Constantine Yamanis was fined a total of $130,000 and was ordered “to stand committed until the fine is paid or until the defendant is otherwise discharged by due course of law.” Noting that even if paroled, he would remain incarcerated pending payment of his fines, Yamanis now contends that because of his indigency, the imposition of “stand committed” fines will result in the denial of due process and equal protection. He relies entirely on the district court’s appointing trial counsel as evidence of his indigency. We dismiss this claim out of hand. Yamanis’ representations at the hearing regarding the appointment of counsel on May 10, 1982, and in his financial affidavit of the same date reveal that he owned assets in excess of $450,000. He sought the appointment of counsel not because he was poor, but because his money was not readily available. At the May 10th hearing and in its order the next day, the district court made it clear that it doubted Yamanis’ indigency even for appointment of counsel purposes and that it. acted strictly out of “an abundance of caution.” As there has been no suggestion that Yamanis’ assets had dwindled or that these assets would be unavailable if he were paroled, we find no merit in his claim. C. Cumulative Fines Appellants were fined $100,000 on Count I and $15,000 on each of Counts IV and V. These fines were cumulative such that they totalled $130,000. Citing Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) and United States v. Chagra, 669 F.2d 241 (5th Cir.), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982), appellants maintain that a fine for engaging in a continuing criminal enterprise cannot be made cumulative with fines for predicate offenses. This issue is directly controlled by the recent decision in United States v. Brantley, 733 F.2d 1429 (11th Cir.1984). There the defendant argued that he could not be cumulatively punished for a section 848 violation and an underlying section 841 violation. Referring to United States v. Garrett, 727 F.2d 1003 (11th Cir.1984), and United States v. Phillips, 664 F.2d 971 (5th Cir. Unit B 1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982), the Brantley court declared: Those cases hold essentially that the § 841 offense and the § 848 offense are distinct for double jeopardy purposes. See Garrett, 727 F.2d at 1009; Phillips, 664 F.2d at 1009. In light of the “basic design [of double jeopardy] as a bar against repeated attempts to convict,” United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), if successive prosecutions (involving of course cumulative punishment) are not barred, it follows logically that double jeopardy does not bar cumulative punishment in a single prosecution for § 841 predicate offenses and the § 848 offense. 733 F.2d at 1437 (footnote omitted). On the authority of Brantley, we hold that the district court did not err in imposing cumulative fines. V. MICHAEL YAMANIS: PERSONAL JURISDICTION Michael Yamanis contends that under existing standards of due process, the district court was divested of jurisdiction over his person due to the illegality of the manner in which he was brought before the court. In support of his claim, he alleges that an American agent, with the assistance of Honduran officials, arrested him in San Pedro-Sula, Honduras, drove him at gunpoint to Tegucigalpa, and put him against his will on a plane bound for Miami via Belize, all under the guise of a Honduran deportation. He further alleges that when he attempted to deplane in Belize, asserting his rights as a British subject, he was wrestled back into his seat and forced to remain there until his arrival in Miami. Yamanis argues that the alleged kidnapping was unlawful, particularly in that it circumvented the judicially supervised extradition procedures specified by treaty and by statute. According to Yamanis, we should vacate his conviction and have his indictment dismissed with prejudice. This case falls squarely within the Ker-Frisbie doctrine, which holds that a defendant cannot defeat personal jurisdiction by asserting the illegality of the procurement of his presence. This doctrine takes its name from two eases in which the Supreme Court rejected the due process claims of defendants who had been brought by force into the jurisdictions in which they were tried. See Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952). This circuit’s adherence to the Ker-Frisbie doctrine was unequivocally established in United States v. Winter, 509 F.2d 975 (5th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975), in which the former Fifth Circuit declared: [W]e are convinced that under well established case law of the Supreme Court and this Circuit, a defendant in a federal criminal trial whether citizen or alien, whether arrested within or beyond the territory of the United States may not successfully challenge the District Court’s jurisdiction over his person on the grounds that his presence before the Court was unlawfully secured. Id. at 985-86; see also United States v. Postal, 589 F.2d 862, 873 (5th Cir.) (“A defendant may not ordinarily assert the illegality of his obtention to defeat the court’s jurisdiction over him”), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 40 (1979). Yamanis’ claim is remarkably similar to the one rejected in United States v. Herrera, 504 F.2d 859 (5th Cir.1974). There the defendant, a non-resident alien, alleged that two American agents, together with two Peruvian agents, had unlawfully arrested him in Peru and forcibly transported him to Florida. Not unlike the present case, [t]he argument is that he was kidnapped and forcibly abducted in contravention of federal statutes, and in a manner which violated the territorial integrity of Peru ____ He also urges a loss of jurisdiction by reason of the failure of the United States to follow the orderly processes of extradition under the treaty between the United States and Peru. Id. at 860. Applying the Ker-Frisbie doctrine, the court concluded, “It is settled by both Supreme Court decisions and decisions of this court that these contentions are without merit.” Id. Likewise, we hold that Yamanis’ claim that the district court lacked personal jurisdiction is meritless. Yamanis urges us to reverse on the authority of the Second Circuit’s decision in United States v. Toscanino, 500 F.2d 267 (2d Cir.1974). We decline to do so for three reasons. First, the Second Circuit itself has limited Toscanino to situations of extreme misconduct. See Lujan v. Gengler, 510 F.2d 62 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975). Since Yamanis has not alleged the sort of “cruel, inhuman and outrageous treatment allegedly suffered by Toscanino,” id. at 65, relief would not be warranted if we were to follow the Second Circuit. Second, although this court has not ruled out the possibility of a narrow exception to the Ker-Frisbie doctrine for extreme cases, it has plainly rejected the broad reading of Toscanino which Yamanis urges us to adopt. See Postal, 589 F.2d 874 n. 17; Winter, 509 F.2d at 986-88; Herrera, 504 F.2d at 860. Third, the continuing validity of the Toscanino approach is questionable after the intervening decision in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), in which the Supreme Court refused to “retreat from the established rule that illegal arrest or detention does not void a subsequent conviction.” Id. at 119, 95 S.Ct. at 865. VI. MICHAEL YAMANIS: INACCURATE PRESENTENCE REPORT Before sentencing Michael Yamanis, the district court afforded him an opportunity to point out “anything in the presentence investigation that is inaccurate, incomplete or not true.” Counsel informed the court that Yamanis disputed the accuracy of two factual assertions in the presentence report, one referring to the amount of marijuana handled by the Yamanis organization and the other referring to Yamanis’ ownership of that marijuana. The court remarked: Well, as I recall the testimony there was ample evidence that Mr. Yamanis and his brother, Constantine, were quite capable of smuggling and had brought in many, many, many tons before the house of cards began to fall in Marianna. And so to the extent that your recollection and my recollection differ, I guess the record will show exactly the number of tons or pounds that Mr. Yamanis and his brother and several hundred others probably involved in the organization brought in from time to time. On appeal, Yamanis again contests the accuracy of the report and argues that the case must be remanded for resentencing. His claim may be broken down into two parts: first, that the district court erred in failing to resolve the factual dispute on the record, and second, that the district court’s reliance on false information in sentencing resulted in the denial of due process. In United States v. Stephens, 699 F.2d 534 (11th Cir.1983), the defendant similarly disputed the accuracy of the presentence report and argued that the district court should have made factual findings related to the disputed facts and corrected the report accordingly. Noting that the defendant had been “given the opportunity to refute the perceived discrepancies in the presentence report,” id. at 537, the court held that a sentencing judge is not “required to go further and make findings to resolve the possible conflicting versions presented ...,” id. The court explained, “Having been presented with some contradictory facts, the district court may, within its discretion, determine that it has adequate undisputed information to properly sentence the defendant.” Id. Stephens confirms that the first part of the Yamanis’ claim is without merit. There are several problems with the second part of the claim, regarding the district court’s asserted reliance on false information. It is well settled that sentences based on erroneous and material information or assumptions violate due process and that a new sentencing hearing is required where the trial court has relied on such information or assumptions. See United States v. Tobias, 662 F.2d 381, 388 (5th Cir. Unit B 1981), cert. denied, 457 U.S. 1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982), and cases cited. In this case, however, it is by no means clear that the information in the presentence report was materially erroneous. At the sentencing hearing, Yamanis offered no additional evidence to refute the factual assertions in question; instead, he suggested that these assertions were inconsistent with the evidence adduced at trial. Our review of the record finds support for the proposition that at least with respect to some of the marijuana, Yamanis’ role was that of owner as well as transporter. As for the total amount of marijuana involved, the record does not confirm the inaccuracy of the government’s estimate. Yamanis has therefore failed to demonstrate a major premise of his argument, the misstatement of material facts. In addition, the record in this case simply does not establish that the district court actually relied on the contested assertions in the report. Although, as Yamanis points out, the court inevitably took into account the quantity of drugs