United States v. Back

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 18, 2026
• Docket: 25-6099
• Status: Unpublished

Opinion

Appellate Case: 25-6099 Document: 40-1 Date Filed: 05/18/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 18, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 25-6099 (D.C. No. 5:23-CR-00348-G-1) CHAD BACK, a/k/a Overflow, (W.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before McHUGH, BALDOCK, and ROSSMAN, Circuit Judges. _________________________________

A federal jury convicted Chad Back of several crimes related to a

drug-distribution conspiracy. He asks us to reverse his convictions, arguing that the

government violated his due-process rights by delaying his prosecution, and that the

district court erred by admitting a coconspirator’s statements. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

We have honored the parties’ request for a decision without oral argument. *

See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This decision is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. Appellate Case: 25-6099 Document: 40-1 Date Filed: 05/18/2026 Page: 2

I

Mr. Back’s prosecution arose from allegations that he organized drug deals

from an Oklahoma prison. Federal agents used a confidential informant to conduct a

series of controlled buys—drug purchases monitored and directed by law

enforcement. The informant initiated the buys by contacting Mr. Back in prison on

his unauthorized cellphone. Mr. Back then arranged for a third person to deliver

drugs to the informant.

II

The controlled buys occurred in 2019, and Mr. Back’s indictment alleged

crimes as late as July 2020. But a grand jury did not indict him until August 2023.

Mr. Back moved to dismiss the indictment, arguing that the government’s delay in

securing it violated due process.

Statutes of limitations provide the main protection against “overly stale

criminal charges.” United States v. Lovasco, 431 U.S. 783, 789 (1977) (internal

quotation marks omitted). Yet the Due Process Clause still “has a limited role to play

in protecting against oppressive delay.” Id. Preindictment “delay solely to gain

tactical advantage over the accused . . . deviates from elementary standards of fair

play and decency required by the Due Process Clause of the Fifth Amendment.”

United States v. Murphy, 100 F.4th 1184, 1208 (10th Cir. 2024) (brackets, ellipsis,

and internal quotation marks omitted).

Motions to dismiss for preindictment delay trigger a burden-shifting analysis.

Id. at 1210. The first step requires the defendant to “make a prima facie showing that

2 Appellate Case: 25-6099 Document: 40-1 Date Filed: 05/18/2026 Page: 3

the delay in charging him has actually prejudiced his ability to defend, and that this

delay was intentionally or purposely designed and pursued by the Government to

gain some tactical advantage over or to harass him.” 1 See id. (internal quotation

marks omitted).

Mr. Back claimed four categories of evidence had been lost because of the

preindictment delay, but the district court concluded he failed to make a prima facie

showing that the delay prejudiced him.

Surveillance footage. The government alleged Mr. Back arranged four drug

deals (that turned out to be controlled buys) using a cell phone in prison. The delay

in his prosecution, he said, prevented him from obtaining prison surveillance footage

from the times he allegedly participated in the calls, footage that might have shown

him not using a cell phone. Citing evidence that the prison routinely destroyed

surveillance footage after thirty days, the district court concluded that a delay in

prosecution did not cause the loss of footage. The footage would have been

destroyed, the district court reasoned, before charges against Mr. Back “might

reasonably have been brought.” R. vol. 1 at 233.

Death of a witness. The government claimed Mr. Back made incriminating

statements to another man in a recorded phone call. The other man on the call died in

1 If the defendant makes this showing, then the government must present “evidence showing that the delay was not improperly motivated or unjustified.” United States v. Comosona, 614 F.2d 695, 697 (10th Cir. 1980). When that occurs, the defendant “bears the ultimate burden of establishing the Government’s due process violation by a preponderance of evidence.” Id. 3 Appellate Case: 25-6099 Document: 40-1 Date Filed: 05/18/2026 Page: 4

2022, preventing Mr. Back from using him as a witness. As the court concluded, the

mere possibility that the other man might have provided information helpful to

Mr. Back fell short of actual prejudice.

Photographs. The government lost photographs taken during the search of a

storage unit that uncovered a safe containing drug residue and fake identification

cards bearing Mr. Back’s name. For the most part, the district court concluded,

Mr. Back never explained how the loss of the photographs prejudiced him. And

acknowledging Mr. Back’s argument that the fake identification cards might show

that someone else had been assuming his identity, the court concluded that the loss of

photographs of the cards imposed no prejudice because the cards themselves still

existed.

State-court hearings. The confidential informant used to investigate Mr. Back

had state-court hearings in 2023 that resulted in the dismissal of one felony case and

a sentence modification in another case. The delay in his prosecution, Mr. Back said,

prevented his lawyer from attending the 2023 hearings to determine why the

informant had received such favorable treatment. The court found unsubstantiated

Mr. Back’s suggestion that the preindictment delay undermined his ability to impeach

false or misleading testimony from the informant, and it concluded that “any minor

detriment” to Mr. Back’s case from his lawyer’s inability to attend the informant’s

hearings did not amount to actual prejudice. Id. at 236.

In addition to holding Mr. Back failed to make a prima facie showing of actual

prejudice, the court concluded he failed to make a prima facie showing that the

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reason for the delay was the government’s desire to gain a tactical advantage or to

harass Mr. Back. And so it denied the motion to dismiss.

III

We review the district court’s decision to deny the motion to dismiss for an

abuse of discretion. See Murphy, 100 F.4th at 1208.

On appeal, Mr. Back maintains the preindictment delay “actually prejudiced

his ability to mount a complete defense.” Aplt. Br. at 11. But he never engages with

the district court’s reasoning. See Nixon v. City & Cnty. of Denver, 784 F.3d 1364,

1366 (10th Cir. 2015) (“The first task of an appellant is to explain to us why the

district court’s decision was wrong.”).

We discern no abuse of discretion in the district court’s determination that

Mr. Back failed to make a prima facie showing of actual prejudice. The evidence lost

to Mr. Back was at most only potentially exculpatory. In other words, his claims of

prejudice are speculative on the record before us. But in this context, “the defendant

must show that he has suffered definite and not speculative prejudice.” United States

v. Garcia, 74 F.4th 1073, 1099 (10th Cir. 2023) (per curiam) (internal quotation

Mr. Back is correct, of course, that actual prejudice from preindictment delay

usually results from the loss of witnesses or physical evidence “or the impairment of

their effective use at trial.” Id. at 1103 (internal quotation marks omitted). “But the

loss of evidence, without more, is insufficient to support a claim of unconstitutional

pre-indictment delay.” Id.

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Having decided that the district court correctly concluded Mr. Back failed to

show actual prejudice, we need not consider whether it also correctly concluded he

failed to show an improper motive for the preindictment delay.

IV

We next turn to Mr. Back’s claim that the district court erred when it admitted

statements of a coconspirator.

During the first controlled buy, the informant met a man named Gonzalo

Duran to exchange money for drugs. At the meeting, Mr. Duran told the informant

that he met Mr. Back in prison, that he later started working with Mr. Back, and that

he and Mr. Back had “been doing pretty good together.” R. vol. 1 at 473 (internal

quotation marks omitted).

The district court concluded that the statements fell outside the definition of

hearsay because they were statements by Mr. Back’s “coconspirator during and in

furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E). Before admitting a

coconspirator’s statements under Rule 801(d)(2)(E), a court must find “by a

preponderance of the evidence that (1) a conspiracy existed, (2) the declarant and the

defendant were both members of the conspiracy, and (3) the statements were made in

the course of and in furtherance of the conspiracy.” United States v. Otuonye,

995 F.3d 1191, 1204 (10th Cir. 2021) (internal quotation marks omitted).

Mr. Back challenges only the court’s finding that Mr. Duran made the

statements in furtherance of the conspiracy. Although we review the ultimate

decision to admit evidence for an abuse of discretion, we review preliminary factual

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findings—such as whether statements were made in furtherance of a conspiracy—for

clear error. See United States v. Morgan, 748 F.3d 1024, 1036 (10th Cir. 2014). We

will reverse under the deferential clear-error standard only if we form “a definite and

firm conviction that a mistake has been made.” United States v. Martinez, 92 F.4th

1213, 1227 (10th Cir. 2024) (internal quotation marks omitted). If the district court’s

“account of the evidence is plausible in light of the record viewed in its entirety, we

may not reverse it even if we might have weighed the evidence differently.” Id.

(internal quotation marks omitted).

A statement is “made in furtherance of a conspiracy when it is intended to

promote the conspiratorial objectives.” United States v. Rutland, 705 F.3d 1238,

1252 (10th Cir. 2013) (internal quotation marks omitted). We have identified several

types of statements that might further a conspiracy, including “statements made to

induce enlistment or further participation in the group’s activities” and statements

intended to allay a coconspirator’s fears. United States v. Perez, 989 F.2d 1574,

1578 (10th Cir. 1993) (internal quotation marks omitted). Statements do not further a

conspiracy, however, if they amount to “mere narratives, that is statements relating to

past events, even those connected with the operation of the conspiracy where the

statement serves no immediate or future conspiratorial purpose.” Id. (internal

The district court found Mr. Duran made the contested statements in

furtherance of the conspiracy because the statements helped establish Mr. Duran as

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Mr. Back’s “legitimate agent and to encourage” the informant to continue to buy

drugs from Mr. Back and Mr. Duran. R. vol. 1 at 478.

We see no clear error in this finding. The informant had arranged to purchase

drugs from Mr. Back, but had to make the physical exchange of money for drugs with

an intermediary (Mr. Duran) because Mr. Back himself was in prison. Those

circumstances permit the finding that, in describing his relationship with Mr. Back,

Mr. Duran intended to make the informant comfortable proceeding with the drug

deal.

Mr. Back resists this conclusion. He emphasizes the informant never

questioned the authenticity of Mr. Duran’s relationship with Mr. Back or suggested

she needed assurances to continue buying drugs from the men. For that reason,

Mr. Back says, Mr. Duran’s statements amounted to the type of “idle chatter” that

does nothing to further conspiracies. Perez, 989 F.2d at 1578 (internal quotation

Mr. Back’s position is well taken as a general matter. We accept that the

record could support a finding that Mr. Duran’s statements were indeed mere idle

chatter. But the district court made a different finding, and the record supports it.

Our focus remains Mr. Duran’s “intent” in making the statements. Id. And the

evidence permits the view that Mr. Duran made the contested statements to provide

assurances to the informant even though she never sought any. In short, we see at

least two permissible views of the evidence. The district court’s “choice between

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them cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564,

574 (1985).

* * *

The district court’s judgment is affirmed.

Entered for the Court

Veronica S. Rossman Circuit Judge