IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-60533

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

155 ACRES, CALHOUN, Parcel of Real Property

Containing 155 Acres, More or Less, in the West

Half of Section 8, Township 22 North, 

Range 9 East, Calhoun County, MS,

Defendant,

D. HOWARD MCPHAIL, JR.; SARAH TRILBY

MCPHAIL; LOU CAROLYN MCPHAIL,

Claimants-Appellants.

* * * * * * * * * * * * * *

 

No. 96-60535

Summary Calendar

 

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

versus

PARCEL OF REAL PROPERTY, Containing 47 Acres,

in the Northwest Quarter of Section 18, Township

22 North, Range 9 East, Calhoun County, MS,

 Defendant,

D. HOWARD MCPHAIL, JR.; LOU CAROLYN MCPHAIL;

SARAH TRILBY MCPHAIL,

 Claimants-Appellants.

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Appeals from the United States District Court
No. 96-60533

No. 96-60535

-2-

* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

for the Northern District of Mississippi

USDC No. 3:91CV122

USDC No. 3:91CV123

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December 11, 1997

Before DUHE’, DeMOSS and DENNIS, Circuit Judges.

PER CURIAM:*

D. Howard McPhail, Sarah Trilby McPhail, and Lou Carolyn

McPhail, appeal from the district court’s judgments forfeiting

their property pursuant to 21 U.S.C.§ 881(a)(7). The McPhails

argue that: 1) the district court plainly erred by not sua

sponte raising the due process issue of United States v. James

Daniel Good Real Property, 510 U.S. 43 (1993); 2) the forfeiture

of their property violated the Excessive Fines Clause of the

Eighth Amendment; 3) the forfeiture was barred by the doctrines

of res judicata and collateral estoppel; 4) the district court

judge and the magistrate judge should have recused themselves;

and 5) the magistrate judge erred by denying the request for

discovery filed by the McPhails after they had filed their notice

of appeal. 

We have reviewed the record and find no reversible error. 

The McPhails have not met their burden under plain error review

of showing that the asserted Good violation was an error that was

clear or obvious to the district court. See Highlands Ins. v.
No. 96-60533

No. 96-60535

-3-

National Union Fire Ins., 27 F.3d 1027, 1031-32 (5th Cir. 1994),

cert. denied, 513 U.S. 1112 (1995). Nor have they met their

burden of showing that the forfeiture of their $87,000 property

amounted to an excessive fine in light of the $4 million maximum

possible fine each faced under §§ 21 U.S.C. §§ 841(b) and

(b)(1)(A)(vii). See Austin v. United States, 509 U.S. 602, 622

(1993). The McPhails’ attempt to raise a res judicata issue for

the first time on appeal is facially frivolous. The McPhails’

allegations of judicial bias, also raised for the first time on

appeal, involve questions of fact which, by their nature, are not

obvious error. See Robertson v. Plano City of Tex., 70 F.3d 21,

23 (5th Cir. 1995). Because the filing of their notice of appeal

vested jurisdiction over the proceedings in this court, the

McPhails’ subsequent request for discovery filed in the district

court was properly denied. See Winchester v. United States Atty.

for Southern Dist. of Tex., 68 F.3d 947, 948-49 (5th Cir. 1995). 

Accordingly, the district court’s judgment is AFFIRMED. The

McPhails’ “Motion to Reinstate Joint Brief” and motion to file a

supplemental brief are DENIED.

JUDGMENTS AFFIRMED; MOTIONS DENIED.