United States Court of Appeals

For the Eighth Circuit 

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No. 19-2627 

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United States of America

 Plaintiff - Appellee

v. 

Charles David Chastain

 Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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Submitted: September 22, 2020

 Filed: October 28, 2020 

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Before SMITH, Chief Judge, BENTON and KOBES, Circuit Judges. 

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KOBES, Circuit Judge.

A jury convicted Charles Chastain of extortion, 18 U.S.C. § 1951(a), 

attempted extortion, 18 U.S.C. § 1951(a), and receipt of a firearm with intent to 

commit a felony, 18 U.S.C. § 924(b). He challenges the sufficiency of the evidence 
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on all counts and says the district judge1 should have sua sponte recused at 

sentencing. We affirm. 

I.

Charles Chastain retired from the Arkansas State Police in 2017 and began 

working as an auxiliary sheriff’s deputy for the Arkansas County Sheriff’s Office. 

He was assigned to the Tri-County Drug Task Force and to work with two 

confidential informants—Michael Caldwell and Caldwell’s girlfriend, Cris Embree. 

Officers handling confidential informants make recommendations to prosecutors 

based on whether the informants provide helpful information. 

A few months later, Chastain asked Caldwell to steal an ATV for him. 

Chastain texted: “I don’t want to put you in a bind, but I’m trying like hell to keep 

you out of the big house. Every time [the Arkansas County Prosecuting Attorney 

and the Prairie County Sheriff] ask me I tell them you are working your ass off.” 

Trial Tr. Vol. 1, 100:17–19. 

Caldwell stole an ATV worth around $25,000 because “if [Chastain] didn’t 

get what he wanted, he would use that against me and maybe tell [the prosecuting 

attorney or sheriff] that I wasn’t doing what I was supposed to be doing.” Id. at 

103:2–3. Caldwell testified that he would not have stolen the ATV if Chastain had 

not asked him to. 

Chastain paid Caldwell either $800 or $1,000 for the ATV. Later, Chastain 

texted Caldwell: “Man getting that thing is probably the only thing I have really 

done wrong in my life. Y’all take care of me I will take care of y’all. As long as 

y’all don’t do anything stupid y’all are golden. Just don’t do anything without me 

knowing ahead of time.” Id. at 112:15–18. 

1

The Honorable J. Leon Holmes, Senior United States District Judge for the 

Eastern District of Arkansas.
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Later that year, Caldwell and Embree were stopped by Arkansas State Police 

with drugs in their car. The arresting officer called Chastain, who asked that 

Caldwell and Embree not go to jail. The arresting officer testified that he let 

Caldwell and Embree go because he was under the impression that they were 

working on a case with Chastain. He said he would not have let the two go were it 

not for Chastain.

The scheme began to unravel when Chastain shifted his interest from ATVs 

to stolen guns. Chastain asked Caldwell if he knew of any guns on the street that 

Chastain could buy or steal for his personal use. A later recording suggested these 

guns would be “hot,” i.e. stolen. This made Caldwell nervous, so he called the FBI. 

Special Agent Aaron Green provided Caldwell with three FBI rifles, each 

manufactured outside Arkansas. Caldwell told Chastain that the firearms were 

stolen, and then gave them to Chastain. Chastain was supposed to pay $300 for the 

guns, but he did not pay at delivery. 

After being arrested, Chastain admitted that he used Caldwell, Embree, and 

his official position to obtain the ATV and firearms. Chastain also admitted that he 

intended to purchase stolen guns. He further admitted that he had informed Caldwell 

and Embree that if they were stopped with the ATV or weapons, they were to tell 

police that they were for Chastain in his professional capacity as an auxiliary 

sheriff’s deputy. 

Chastain was indicted and went to trial. He twice moved for a judgment of 

acquittal. The district court denied both motions. He was convicted on all counts.

At sentencing, Chastain appeared before the same district court judge who 

handled his trial.

2

 The judge told the parties that he had traded text messages with 

2

At some point after sentencing, Chastain’s case was reassigned to another 

district judge.
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his brother about Chastain. In a June 2, 2019 text, the judge’s brother asked him if 

Chastain had been sentenced yet. The judge responded by stating “I don’t recall. I 

would have to look.” Sent. Tr. Vol. 1, 2:20. Then, on June 21, 2019, the judge’s 

brother texted him again, stating “I’m hearing David Chastain is still a policeman. 

Can he do that??” Id. at 2:25–3:1. The judge did not respond.

 The district court judge told counsel that he was not sure if his brother’s texts 

were out of “idle curiosity or if there has been some connection or contact with [his 

brother] and Mr. Chastain or a friend or family of [his brother] and Mr. Chastain. 

It’s very possible. I don’t know whether that’s happened or not. And if there has 

been, I don’t know whether it’s good or bad or indifferent.” Id. at 3:4–8. The judge

asked if the parties wished to make any motions. Neither party did. The district 

court sentenced Chastain to 30 months imprisonment, a downward departure from 

the Guidelines range of 41 to 51 months. Chastain timely appealed.

II.

Chastain challenges the sufficiency of the evidence on all three convictions. 

We review de novo. United States v. Johnson, 745 F.3d 866, 868–69 (8th Cir. 2014). 

“We view the evidence in the light most favorable to the guilty verdict, granting all 

reasonable inferences that are supported by that evidence.” United States v. Sullivan, 

714 F.3d 1104, 1107 (8th Cir. 2013) (citations and quotation marks omitted). “We 

will reverse a conviction only if no reasonable jury could have found the defendant 

guilty beyond a reasonable doubt.” Id.

A.

Chastain argues that the evidence is insufficient to prove he committed 

extortion or attempted extortion under color of official right. A public official 

commits extortion in violation of 18 U.S.C. § 1951 when he “obtain[s] a payment to 

which he was not entitled, knowing that the payment was made in return for official 

acts.” Evans v. United States, 504 U.S. 255, 268 (1992). Outside of the campaign 
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contribution context, an explicit quid pro quo is not required. See United States v. 

Kalb, 750 F.3d 1001, 1004 (8th Cir. 2014) (citation omitted). 

Chastain asked Caldwell to steal an ATV and firearms. In exchange, Chastain 

paid a fraction of those items’ market price and assured Caldwell that if “[y]’all take 

care of me I will take care of y’all. As long as y’all don’t do anything stupid y’all 

are golden. Just don’t do anything without me knowing ahead of time.” Trial Tr. 

Vol. 1, 112:15–18. Chastain paid off that assurance by, among other things, 

convincing Arkansas State Police to let Caldwell and Embree off after they were 

stopped with drugs. This, as with the recommendations Chastain made to the 

prosecutor in Caldwell’s case, was an official act. McDonnell v. United States, 136 

S. Ct. 2355, 2370 (2016) (official acts include “provid[ing] advice to another official, 

knowing or intending that such advice will form the basis for an ‘official act’ by 

another official”). There was sufficient evidence for a jury to convict Chastain of 

extortion and attempted extortion.3

B.

18 U.S.C. § 924(b) makes it a crime to “ship[], transport[], or receive[] a 

firearm or any ammunition in interstate or foreign commerce” with the intent to 

commit a felony. The jury convicted Chastain of receipt of a firearm with the intent 

to commit the felony of possession of a stolen firearm under 18 U.S.C. § 922(j). 

3

Chastain argues that the district court’s jury instruction failed to instruct the 

jury on the “quid pro quo” requirement in Evans. An explicit quid pro quo is not 

required, but we agree that the jury instruction should have included the “in return 

for an official act” language from the Supreme Court’s decision in Evans. See 

United States v. Evans, 30 F.3d 1015, 1018 (8th Cir. 1994) (affirming such an 

instruction). That said, Chastain failed to object to the instruction below, which 

requires him to show plain error. His briefing argues only that the instruction was 

in error, so he has not met that demanding standard. See United States v. Barthman, 

919 F.3d 1118, 1121 (8th Cir. 2019) (criminal defendant bears the burden of 

establishing all four prongs of plain error review).
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Chastain challenges the sufficiency of the evidence of this conviction in two ways. 

Neither is persuasive. 

i. 

Chastain first says that 18 U.S.C. § 924(b) requires direct interstate receipt of 

the firearms, and the evidence showed his receipt was entirely intrastate. While 

Chastain moved for acquittal below, he did not raise this objection at trial. We 

review for plain error. United States v. Clarke, 564 F.3d 949, 957 (8th Cir. 2009). 

To show plain error, Chastain must establish that (1) the district court committed an 

error, (2) the error is clear and obvious, and (3) the error affects his substantial rights. 

United States v. Coleman, 961 F.3d 1024, 1027 (8th Cir. 2020). Assuming the first 

three prongs are met, we will exercise our discretion to correct such an error only if 

it “seriously affects the fairness, integrity or public reputation of judicial 

proceedings.” Id. (citation omitted). Chastain bears the burden of establishing all 

four prongs of plain error review. Barthman, 919 F.3d at 1121. 

Chastain cannot meet the second prong.4

 An error is plain if it is “clear under 

current law.” United States v. Olano, 507 U.S. 725, 734 (1993). We have never 

addressed whether 18 U.S.C. § 924(b) requires direct interstate receipt of the 

firearms. In support of his argument, Chastain relies almost entirely on an out-of4

Even if we reviewed the conviction under sufficiency of the evidence, as 

Chastain urges, he still loses. The jury charge on the commerce element required 

proof that “the firearm was transported across a state line at some point during or 

before the defendant’s possession of it.” D. Ct. Dkt. 71 at 12. Chastain did not 

object. Where a defendant does not object to a jury instruction at trial, “a conviction 

may be upheld against a sufficiency challenge where a rational jury could have 

found, beyond a reasonable doubt, each element of the offense as charged in the jury 

instructions.” United States v. Johnson, 652 F.3d 918, 922 (8th Cir. 2011). The 

Government put on evidence that the weapons were manufactured outside of 

Arkansas and that Chastain possessed the weapons in Arkansas. This is sufficient 

for a jury to find the interstate commerce element as defined in the jury instructions.
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circuit district court opinion. See United States v. Havelock, 560 F. Supp. 2d 828, 

832 (D. Ariz. 2008) (holding intrastate receipt of a firearm could not support 

conviction under § 924(b)), rev’d in part on other grounds 619 F.3d 1091 (9th Cir. 

2010), rev’d in part on other grounds on reh’g en banc, 664 F.3d 1284 (9th Cir. 

2012). That decision is not a model of clarity. That district court reviewed the 

statute under a less deferential standard as the court of first impression. An out-ofcircuit district court decision recognizing multiple rational readings of § 924(b) and 

adopting the one most favorable to the criminal defendant is a far cry from showing 

Chastain’s argument is “clear under current law.”5

ii. 

Chastain next argues that there was insufficient evidence to support his gun 

conviction because the guns were not stolen. We disagree. All that was required 

was evidence that he intended to obtain stolen guns. Section 924(b) is an attempt 

crime: it codifies the requirements of attempt law but replaces the substantial step 

requirement with a requirement that the defendant ship, transport, or receive a 

firearm. See United States v. Burks, 135 F.3d 582, 583 (8th Cir. 1998) (“To prove 

attempt, the government must show 1) intent to engage in the crime and 2) conduct 

constituting a substantial step towards the commission of the crime.”). By its own 

terms, an attempt crime does not require the commission of the underlying felony. 

United States v. Nguyen, 829 F.3d 907, 917 (8th Cir. 2016) (“In attempt cases, a 

defendant may be convicted regardless of whether the attempt is successful.”). Here, 

the Government showed that Chastain had the intent to violate each element of the 

underlying substantive offense. 

Plus, “factual impossibility is not a defense to an inchoate offense such as 

conspiracy or attempt.” United States v. Joiner, 418 F.3d 863, 869 (8th Cir. 2005) 

(cleaned up). “Factual impossibility occurs when the objective of the defendant is 

5

Chastain’s argument that the district court plainly erred in its jury instruction 

on the interstate nexus fails for the same reason.
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proscribed by the criminal law but a circumstance unknown to the actor prevents 

him from bringing about that objective.” United States v. Sobrilski, 127 F.3d 669, 

674 (8th Cir. 1997). So, it did not matter whether the FBI provided Caldwell with 

guns that were stolen, only that Chastain’s objective was that the guns be stolen. See 

United States v. Rehak, 589 F.3d 965, 971 (8th Cir. 2009) (affirming conviction for 

conspiracy to violate civil rights even though the intended target was fictitious and 

therefore did not have civil rights). There was sufficient evidence to convict 

Chastain of possession of a firearm with intent to commit a felony.6

III.

Finally, Chastain argues that the district judge reversibly erred by failing to 

sua sponte recuse at sentencing. Under 28 U.S.C. § 455(a), “[a]ny justice, judge, or 

magistrate judge of the United States shall disqualify himself in any proceeding in 

which his impartiality might reasonably be questioned.” When a defendant fails to 

preserve the issue of recusal for appeal, “we review the lower court’s inaction under 

the ‘plain error’ standard.” United States v. Melton, 738 F.3d 903, 905 (8th Cir. 

2013). “Our cases reveal a reluctance to require a judge to recuse himself or herself 

sua sponte. Despite the sweeping language of 28 U.S.C. § 455(a) . . . the statute 

does not extend literally to any kind of doubtful behavior . . . . [A judge’s] opinions 

warrant recusal under § 455(a) only if they ‘display a deep-seated favoritism or 

antagonism that would make fair judgment impossible.’” United States v. Sypolt, 

346 F.3d 838, 839 (8th Cir. 2003) (quoting Liteky v. United States, 510 U.S. 540, 

555 (1994)).

6

In his brief, Chastain relies heavily on the Fifth Circuit’s decision in United 

States v. Trevino, 720 F.2d 395, 401 (5th Cir. 1983) (holding that “in a prosecution 

under section 924(b) for receipt of a firearm with intent to violate section 2113, proof 

of the section 2113(f) status of the bank involved is an essential element of the crime 

charged”). While it is questionable the degree to which Trevino advances Chastain’s 

argument, see id. (recognizing that § 924(b) is “an inchoate, or anticipatory, 

offense,” where “culpability is based on a defendant’s intent rather than on the 

consummation of the underlying offense”), because we have applicable circuit 

precedent of our own, we do not rely on Trevino. 
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While we do not know why the district judge’s brother was interested in the 

case (nor did the district court), nothing in the text messages disclosed by the district 

judge revealed any favoritism or antagonism by the judge. The judge asked the 

parties if they observed any potential issues and offered a chance to object. No one

did. The district court did exactly what it should have done after receiving 

unsolicited, case-related messages from a family member, so we find no error—plain 

or otherwise.

IV.

The judgment of the district court is affirmed. 

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