Criminal – Wire fraud – Aggravated identity theft

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Where a jury found a defendant guilty of wire fraud, conspiracy, and aggravated identity theft, his convictions and 70-month sentence should be affirmed despite his assertion 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.

“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. …

“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. …

“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. …

“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. …

“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.

“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. …

“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 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,’ … 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. …

“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.

“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. …

“… 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. …

“We next address Prado’s argument that his sentence was procedurally unreasonable. …

“… 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 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. …

“Finally, we address Prado’s challenge to the substantive reasonableness of his sentence. …

“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 reasonableness of his sentence.”

United States v. Prado (Lawyers Weekly No. 01-132-25) (21 pages) (Aframe, J.) Appealed from a judgment entered by Wolf, J., in the U.S. District Court for the District of Massachusetts. James M. Mason, with whom Handelman & Mason was on brief, for appellant. Lauren S. Zurier, with whom Zachary A. Cunha was on brief, for the United States (Docket No. 24-1011) (July 2, 2025).

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