United States Court of Appeals For the First Circuit
No. 24-1011
UNITED STATES OF AMERICA,
Appellee,
v.
THIAGO DE SOUZA PRADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Montecalvo, Kayatta, and Aframe, Circuit Judges.
James M. Mason, with whom Handelman & Mason LLC was on brief, for appellant. Lauren S. Zurier, Assistant United States Attorney, with whom Zachary A. Cunha, U.S. Attorney, was on brief, for appellee.
July 2, 2025 AFRAME, Circuit Judge. A jury convicted Thiago de Souza
Prado of wire fraud, conspiracy to commit wire fraud, and
aggravated identity theft. The convictions arose from a scheme to
defraud rideshare and food delivery companies and, to further that
scheme, steal or misappropriate the identities of third parties.
The district court sentenced Prado to seventy months in prison.
Prado appeals, challenging his convictions and sentence. We
affirm.
I.
The following facts are uncontested. Prado was born in
Brazil. In 2003, Prado entered the United States on a tourist
visa, but he is not presently authorized to be in the country. In
January 2019, Prado began participating in the criminal scheme for
which he was convicted. A network of Brazilian nationals living
in the United States carried out the scheme by creating and using
fraudulent accounts so as to permit ineligible individuals to drive
for Uber, Uber Eats, Lyft, DoorDash, Instacart, and Grubhub. Prado
was himself ineligible to drive for these companies because he had
numerous disqualifying driving infractions; others were ineligible
because, among other reasons, they were not legally authorized to
work.
Prado initially drove under fraudulent accounts created
by others and paid rental fees to use these accounts. Eventually,
however, Prado began creating fraudulent accounts to use himself
- 2 - and to rent to others. To establish these accounts, Prado
surreptitiously obtained driver's license images and Social
Security numbers from individuals who could pass the necessary
driver background checks. Prado acquired these images and numbers
from several sources: an associate who worked at a night club and
took pictures of patrons' licenses; employee records from a
painting company that he once owned; an associate who acquired
Social Security numbers from the dark web; software Prado purchased
that enabled him to access the dark web and acquire Social Security
numbers himself; and associates who delivered alcohol for grocery
delivery companies and took photographs of patrons' licenses,
purportedly to confirm their ages.
Prado also used a different software program, called a
"drone" or "bot," to defraud Uber and Lyft. The program spoofed
GPS information on the companies' apps to make it appear that the
fake drivers on Prado's fraudulent accounts had completed rides
that they never actually provided. The program also made completed
trips look longer than they had been, thus inflating driver fees.
Prado bought the drone program, shared it with other participants
in the scheme, and sold it to other drivers for hundreds of
dollars.
Finally, Prado defrauded Uber and Lyft by having the
fake accounts he created refer other fake accounts as "new"
drivers. These fake referrals generated for Prado hundreds of
- 3 - dollars in rewards paid by Uber and Lyft for referring new drivers.
Prado also used an account in his wife's name to receive the
referral rewards.
On May 17, 2021, a grand jury indicted Prado and
seventeen others in connection with the scheme described above.
Over two years later, the grand jury returned a third superseding
indictment charging Prado with one count of conspiracy to commit
wire fraud, 18 U.S.C. § 1349 (Count One); three counts of wire
fraud, 18 U.S.C. § 1343 (Counts Two to Four); and three counts of
aggravated identity theft, 18 U.S.C. § 1028A (Counts Five to
Seven). Only Prado went to trial. After a seven-day trial, a
jury convicted him on all counts. The district court later
sentenced Prado to concurrent forty-six-month prison terms on
Counts One through Four and concurrent twenty-four-month prison
terms on Counts Five through Seven to run consecutively, thereby
producing a total term of seventy months in prison.
II.
Prado challenges his convictions by asserting that he
was prejudiced by an amendment of the third superseding indictment
during trial and by the district court's refusal to disqualify the
prosecution team from involvement in his case. Alternatively,
Prado contends that his sentence was procedurally and
substantively unreasonable.
- 4 - A.
We first address Prado's prejudicial amendment argument.
The third superseding indictment detailed how and when Prado
defrauded some of his victims and misappropriated and misused
others' identities. In so doing, the document's narrative section
employed generic pseudonyms (for example, "Rideshare Company A" or
"Victim 1"), rather than the corporate or individual victims'
names. On the fourth day of trial, the district court suggested
that the government submit a revised version of the third
superseding indictment replacing the pseudonyms with the victims'
names. The government did so shortly thereafter. The court took
this action to assist the jury deliberations by making the
indictment more intelligible.
Days later, following the close of evidence, Prado
raised a pro se objection that he had not received notice of the
names of the victims referenced in the third superseding indictment
until the district court allowed the document's revision
mid-trial, despite having asked his attorney for these names.
Defense counsel did not join in the objection and confirmed that,
in the months prior to trial, the prosecution had twice provided
him with the victims' names. Defense counsel also confirmed that
he knew the names of the victims identified in each count. The
court took the matter under advisement.
- 5 - Following the verdict, the district court allowed Prado
to pursue his lack-of-notice objection by means of a pro se motion.
Prado responded with a motion for acquittal under Federal Rule of
Criminal Procedure 29 and an affidavit reasserting that, despite
having sought the information from his attorney, he did not learn
the victims' names until the sixth day of trial. Prado argued
that this late notice violated his right to a constitutionally
adequate indictment. Prado further argued that this violation was
structural error requiring the court to set aside the jury's
verdicts and dismiss the indictment.
By a written memorandum and order, the district court
denied the motion. After noting that Prado's challenge to the
unrevised third superseding indictment should have been brought as
a motion to dismiss under Federal Rule of Criminal Procedure 12,
the court denied the Rule 29 motion on three grounds: (1) the
government had provided Prado's defense counsel with actual notice
of the victims' identities, which was imputed to Prado; (2) the
third superseding indictment's factual allegations were in any
event sufficiently specific to give Prado constructive notice of
the victims' names, both by themselves and as supplemented by the
case discovery; and (3) even if the third superseding indictment
were deficient in some way, Prado had not demonstrated prejudice
from any deficiency.
- 6 - The district court also opined that, to the extent Prado
wished to raise a claim of ineffective assistance of counsel
arising out of any failure to provide him with the victims' names,
the claim was meritless. The court expressed doubt that, in fact,
Prado had requested the victims' names from his counsel with no
response. But even if that had happened, the court concluded that
Prado failed to show how his defense would have differed if he had
sooner known the victims' specific identities. The court also
emphasized that there was overwhelming evidence incriminating
Prado and that there was no reasonable possibility that the trial
outcome would have been different if defense counsel had shared
with Prado the names of the victims. See Porter v. McCollum, 558
U.S. 30, 40 (2009) (stating that, to establish prejudice as part
of an ineffective assistance of counsel claim, a defendant must
show "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different" (quoting Strickland v. Washington, 466 U.S. 668,
694 (1984))).
In appealing the district court's denial of his motion,
Prado focuses on whether the revision of the third superseding
indictment worked an impermissible direct amendment, a
constructive amendment, or a prejudicial variance requiring
reversal of his convictions. Following the parties' lead, we
assume (without deciding) that Prado preserved his challenge, thus
- 7 - triggering de novo review. See United States v. Dowdell, 595 F.3d
50, 66 (1st Cir. 2010).
Prado has not demonstrated that the district court erred
in allowing the victims' names to be added to the third superseding
indictment. Certainly, these revisions did not work a constructive
amendment or a prejudicial variance. "A constructive amendment
occurs when the government's evidence or arguments or the court's
jury instructions alter the terms of an indictment such that the
defendant is effectively charged with a different offense than the
one returned by the grand jury." United States v. Katana, 93 F.4th
521, 530 (1st Cir. 2024). "A variance, by contrast, does not
involve a change in the offense charged in the indictment. Rather,
a variance occurs when the government relies at trial on different
facts than those alleged in the indictment to prove the same
offense." Id. (citation omitted).
Here, neither the evidence nor the jury instructions
supported a conviction for any offense other than the ones charged
in the third superseding indictment. And Prado has identified no
discrepancy between the facts proved at trial and those alleged in
that indictment. Indeed, the addition of the names merely
introduced details consistent with those already disclosed by the
government. Therefore, there was neither a constructive amendment
of the third superseding indictment nor a prejudicial variance
between the facts alleged and the facts proven at trial.
- 8 - That leaves us to consider whether the district court
erred in allowing the government to directly amend the third
superseding indictment to include the victims' names. There was
no error. While the Presentment Clause of the Fifth Amendment
bars a court or prosecutor from amending an indictment without
grand jury involvement, it "does not extend to alterations that
are 'merely a matter of form.'" Dowdell, 595 F.3d at 67 (quoting
Russell v. United States, 369 U.S. 749, 770 (1962)).
Thus, for example, we have declined to find reversible
error where courts have permitted corrections to mistakes in
indictments such as a reference to "cocaine" when "cocaine base"
was intended, id. at 66-69; a reference to the wrong penalty
provision that would apply to a charged count, see United States
v. Eirby, 262 F.3d 31, 37-38 (1st Cir. 2001); the transposition of
the names of two unindicted co-conspirators within a charged count,
see United States v. Rivera-Ruiz, 244 F.3d 263, 271 (1st Cir.
2001); and the specification of an incorrect date on which the
offense was committed, Jervis v. Hall, 622 F.2d 19, 22-23 (1st
Cir. 1980). When a correction "leaves the substance of the charge
unaffected, the switch does not usurp the prerogative of the grand
jury." Dowdell, 595 F.3d at 68 (cleaned up).
Here, adding the victims' names to the third superseding
indictment worked no change to the substance of the charged crimes.
Indeed, it did not even correct a mistake; it only replaced
- 9 - pseudonyms with real names. Prado does not seek to explain how
those changes might have negatively affected him other than to
say, without elaboration, that earlier notice might have aided him
in planning trial strategy or deciding whether to pursue a trial
at all. But Prado offers no explanation -- nor can we conceive of
one -- for how earlier notice of these victims' identities would
have substantively affected his trial strategy. And absent any
such explanation as to how the revisions "bear[] on the substance
of the charges," id., we will not reverse the district court's
decision to allow them.
In sum, we reject Prado's challenge to his convictions
on grounds of impermissible direct amendment, constructive
amendment, or variance.
B.
We next address Prado's disqualification argument. On
June 1, 2021, shortly after Prado was indicted, attorney Joshua
Levy entered an appearance on Prado's behalf as appointed counsel.
About two months later, Levy moved to withdraw as Prado's counsel
because he had decided to leave the private practice of law. The
court granted Levy's motion. At some point thereafter, Levy joined
the U.S. Attorney's Office for the District of Massachusetts. On
January 11, 2022, he became the First Assistant U.S. Attorney for
the District of Massachusetts.
- 10 - Four days prior to Levy's appointment as First Assistant
U.S. Attorney, in anticipation of Levy's appointment, the office's
ethics advisor notified attorneys in the office that Levy would be
"conflicted off" any case that he had handled in private practice.
This meant that Levy would not supervise or discuss, receive any
status reports, or be involved in any briefings or weekly updates
regarding such a case. Prado's case was among those listed in the
ethics advisor's notification as one from which Levy would be
"walled off."
On May 19, 2023, Levy became the Acting U.S. Attorney
for the District of Massachusetts. Almost two months later, the
Department of Justice ("DOJ") recused the U.S. Attorney's Office
for the District of Massachusetts from Prado's case, reassigned
the case to the U.S. Attorney's Office for the District of Rhode
Island, and authorized Zachary Cunha, the U.S. Attorney for the
District of Rhode Island, to supervise and direct the case. But
the recusal order also authorized the specific prosecutors and
staff assigned to the case from the District of Massachusetts to
remain trial counsel under U.S. Attorney Cunha's direction and
supervision.
On August 9, 2023, Prado filed a pro se motion to dismiss
the third superseding indictment. Prado asserted that, in
disregard of the order walling off Levy from his case, Levy had
communicated to the prosecution team certain directions and
- 11 - information that would be used against him. About a month later,
the district court held a hearing on Prado's motion. At the
conclusion of the hearing, at which the court heard from, among
others, Prado and one of the prosecutors (whom the court swore in
as a witness and permitted Prado to cross-examine), the court
denied the motion. In doing so, the court found that the wall
separating Levy from the prosecution team had not been breached
and that Levy had not disclosed to the team any confidential
information.
In appealing this ruling, Prado asks that we treat his
motion to dismiss as a de facto motion to disqualify the District
of Massachusetts prosecution team for a conflict of interest. The
government agrees with this characterization and consents to us
treating the issue as preserved. Accepting this framing, we
conclude that Prado's argument nonetheless fails.
Prado does not challenge the district court's finding
that Levy was effectively walled off from the prosecution team.
Moreover, Prado explicitly acknowledges that disqualification of
government counsel has been described as a "drastic measure" that
courts should be hesitant to impose except where necessary. United
States v. Bolden, 353 F.3d 870, 878 (10th Cir. 2003) (citation
omitted). He also explicitly acknowledges authority establishing
that, because the disqualification of government attorneys
implicates the separation of powers, "the generally accepted
- 12 - remedy" is to disqualify only the conflicted government attorney
and not the entire office. Id. at 879. Indeed, Prado even
acknowledges that "[e]very circuit court found to have reviewed
the court-ordered disqualification of an entire United States
Attorney's office has reversed the disqualification." E.g.,
United States v. Whittaker, 268 F.3d 185, 187, 196 (3d Cir. 2001);
United States v. Vlahos, 33 F.3d 758, 759 (7th Cir. 1994); United
States v. Caggiano, 660 F.2d 184, 185 (6th Cir. 1981); see also
Bolden, 353 F.3d at 879 (making the same observation).
Immediately after recognizing this authority, Prado
asserts, in a single sentence, that it is inapplicable here because
"[t]he Department of Justice has already decided that [recusal]
was necessary." It appears to us that Prado is suggesting that
the present situation should be governed by an all-or-nothing rule
whereby, as a matter of law, no member of a U.S. Attorney's office
may work on a case if the DOJ has recused the person's home office
from supervising and directing the case. But Prado provides no
support for such a rule, which is in evident tension with the cases
we have just mentioned. Without more, we have no basis for setting
aside Prado's convictions on this ground.
We therefore reject Prado's challenge to his convictions
on the ground that the prosecution team should have been
disqualified from the case.
- 13 - C.
We next address Prado's argument that his sentence was
procedurally unreasonable. The district court, which adopted the
presentence report without change, determined Prado's sentence as
follows. Prado's convictions on Counts One through Four, the
conspiracy to commit wire fraud and substantive wire fraud
violations, yielded a base offense level of seven. See
U.S.S.G. §§ 2B1.1, 2X1.1. The court added twelve points to this
base offense level because it concluded that Prado's offense
conduct caused a loss (determined to be $400,224.27) of more than
$250,000 but not more than $550,000. See id. § 2B1.1(b)(1)(G).
The court also added two points because it concluded that the
offenses involved ten or more victims, see id.
§ 2B1.1(b)(2)(A)(i), and two additional points because it
concluded that the offense conduct involved sophisticated means,
see id. § 2B1.1(b)(10)(C). These determinations combined to yield
a total offense level of twenty-three.
The district court next calculated Prado's criminal
history category. Although Prado had four prior convictions, the
court determined that only one -- a 2015 Massachusetts conviction
for operating a motor vehicle with his license revoked for being
a habitual traffic offender, see Mass. Gen. L. ch. 90, § 23
(2024) -- qualified as a felony and thus gave rise to a single
criminal history point, see U.S.S.G. §§ 4A1.1(c), 4A1.2(c).
- 14 - Prado's criminal record therefore fell within criminal history
category I and, given a total offense level of twenty-three, Prado
faced a guideline sentencing range ("GSR") of forty-six to
fifty-seven months on Counts One through Four. See id. ch. 5, pt.
A. The court then imposed concurrent sentences of forty-six months
of imprisonment -- the low end of the GSR -- on each of those
counts.
Prado's convictions on Counts Five through Seven, the
aggravated identity theft convictions, required sentences of two
years of imprisonment that could run concurrently with each other,
see 18 U.S.C. § 1028A(b)(4), but had to run consecutively to the
sentences imposed on Counts One through Four, see
id. § 1028A(a)(1), (b)(2); see also U.S.S.G. § 2B1.6 (stating
that, for a conviction under 18 U.S.C. § 1028A, "the guideline
sentence is the term of imprisonment required by statute"). The
district court chose to make the two-year sentences on Counts Five
through Seven concurrent to each other but, as required,
consecutive to the forty-six-month sentences it imposed on Counts
One through Four. Thus, the court imposed a total sentence of
seventy months of imprisonment.
Prado says that this sentence was procedurally
unreasonable for two reasons. First, he contends that the district
court erred in finding that his conduct caused losses of between
$250,000 and $550,000. In Prado's view, there was little to no
- 15 - loss caused by his conduct because customers got their rides and
grocery deliveries, and the rideshare and grocery delivery
companies were paid and thus profited from his scheme. Second,
Prado argues, the court erred in assigning him a criminal history
point because the evidence relied on by the presentence report to
determine that his 2015 Massachusetts conviction as a habitual
traffic offender qualifies as a felony -- a police report -- was
insufficient to support the report's conclusion by a preponderance
of the evidence. Even if we assume, solely for argument's sake,
that the district court committed errors in calculating loss and
Prado's criminal history, any such errors would be harmless.
With respect to the loss issue, the district court made
the following, alternative determination at Prado's sentencing
hearing:
I will say that if there was no loss, I would depart upward . . . because the offense level would substantially understate the seriousness of the offense, and I would depart upward to the level that the loss, actual loss, as I calculate it, would get to as the starting point or the guideline range that I'm calculating.
Thus, even if the court had accepted Prado's loss-calculation
argument, it still would have used a GSR of forty-six to
fifty-seven months as the basis for determining Prado's sentence
on Counts One through Four.
- 16 - Moreover, the district court made clear that it would
not impose a sentence of fewer than forty-six months on these
counts (and, therefore, a total sentence of not fewer than seventy
months, when the mandatory consecutive twenty-four-month sentences
on Counts Five through Seven are factored in):
And I'll tell you, if I have any concern about this sentence, it's that it's too low, not that it's too high . . . . I was inclined to give you a longer sentence than 70 months. That's the low end of the guideline range which is, in this case, in my view, the minimum that's reasonable . . . .
We have repeatedly held that a district court's
statements to the effect that it, "cognizant of the dueling
guidelines calculation," would impose the same sentence regardless
of how a contested guideline calculation is resolved renders
harmless an error in the calculation. United States v. Oullette,
985 F.3d 107, 110 (1st Cir. 2021) (citation omitted); see also
United States v. Ahmed, 51 F.4th 12, 22 (1st Cir. 2022); United
States v. Ayala, 991 F.3d 323, 326-27 (1st Cir. 2021); United
States v. Arif, 897 F.3d 1, 12 (1st Cir. 2018). Here, the court
made such statements when it indicated that it would depart upward
and use the same GSR regardless of how the loss-calculation issue
was resolved, and when it further indicated that the total sentence
selected was the minimum that would be reasonable under the
circumstances. Prado's argument that it is not sufficiently clear
that the court would impose the same sentence ignores the court's
- 17 - statement that seventy months was "the minimum that's reasonable."
Moreover, Prado makes no argument that a hypothetical upward
variance to seventy months of imprisonment would have been
impermissible. Thus, any potential error in the court's
loss-calculation was harmless.
With respect to the criminal history issue, we note that
Prado did not raise below the insufficiency argument that he makes
on appeal. Nor does he argue on appeal for application of the
plain-error review standard. He has thus waived the issue. See
United States v. López-Felicie, 109 F.4th 51, 57 (1st Cir. 2024).
And in any event, there was no plain error. We have held that "a
court does not commit plain error when it incorrectly calculates
and applies a criminal history score that nonetheless results in
the defendant being placed in the correct Criminal History
Category." United States v. Delgado-Sánchez, 849 F.3d 1, 12 (1st
Cir. 2017); see also United States v. Albanese, 287 F.3d 226, 229
n.1 (1st Cir. 2002) (per curiam) (similar, noting that "[a] remote
possibility that the outcome could have been affected" in a
situation such as this does not establish the prejudice that must
be shown under plain-error review). Here, the district court's
assignment of a single criminal history point for Prado's 2015
Massachusetts conviction as a habitual traffic offender did not
affect his criminal history category, which remained category I.
- 18 - Thus, Prado has not demonstrated that the assignment of the point
was prejudicial even if the assignment was in error.
We therefore reject Prado's challenges to the procedural
reasonableness of his sentence.
D.
Finally, we address Prado's challenge to the substantive
reasonableness of his sentence. Prado's seventy-month sentence
was twenty-five months longer than any of the sentences imposed on
his co-defendants, even those co-defendants who, according to
Prado, had greater culpability. Prado contends that this disparity
shows that the district court violated his due process rights by
punishing him for going to trial. Prado also contends that the
disparity shows that the court did not properly discharge its
statutory obligation to "consider . . . the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct." 18
U.S.C. § 3553(a)(6).
The government concedes that Prado has preserved the
right to challenge the length of his sentence as unreasonable, and
that our review is therefore for an abuse of discretion. United
States v. Coplin-Benjamin, 79 F.4th 36, 43 (1st Cir. 2023). But
it contends that Prado has forfeited the right to make arguments
for why his sentence was substantively unreasonable -- the
disparity between his sentence and those of his
- 19 - co-defendants -- by not properly raising them before the district
court. Prado responds that his trial counsel sufficiently raised
the question of whether Prado was being penalized for going to
trial to avoid the application of plain-error review.
We need not decide the preservation/standard-of-review
issue. We assume for the sake of argument that Prado's arguments
are preserved and, therefore, subject to review for an abuse of
discretion. We also assume, although the government contests it,
that Prado was similarly situated to co-defendants who received
shorter sentences and, in fact, was less culpable than some of
them. Even so, the district court did not abuse its discretion in
sentencing Prado to seventy months of imprisonment.
At the sentencing hearing, the district court stated
several times that it was not penalizing Prado for going to trial
and that it would be imposing a sentence at the low end of the
applicable GSR -- a sentence shorter than the court thought was
otherwise warranted -- precisely because it wished to minimize the
disparity between Prado's sentence and those of his co-defendants.
The court noted, however, that Prado's decision to go to trial had
led it to learn details about the conspiracy and offense conduct
of which it was unaware when the co-defendants pleaded guilty and
the court sentenced them. See Alabama v. Smith, 490 U.S. 794, 801
(1989) (observing that, during a trial, a judge may come to learn
facts about a defendant that undermine arguments for leniency that
- 20 - the defendant might plausibly have pressed in connection with a
guilty plea). Indeed, the court opined that, if it had known at
the time it accepted the co-defendants' guilty pleas what it
learned during Prado's trial, it might have imposed longer
sentences on at least some of them.
Our review of the record persuades us that the district
court was appropriately sensitive to the disparity issue, and that
it fashioned a sentence which reasonably balanced the need for
case-specific justice with comparative fairness considering the
differing context in which the various defendants appeared before
the court for sentencing. The court thus acted within its
discretion in sentencing Prado to seventy months of imprisonment
and did not punish him for going to trial.
We therefore reject Prado's challenge to the substantive
III.
For the reasons we have stated, we affirm Prado's
convictions and sentence.
- 21 -