“No Substance, No Violation” – The First Circuit Confirms that Replacing Pseudonyms with Actual Victim Names Is a Permissible Formal Amendment
Commentary on United States v. De Souza Prado, 93 F.4th 521 (1st Cir. 2025)

1. Introduction

United States v. De Souza Prado presented the First Circuit with a mosaic of issues flowing from a multi-defendant rideshare fraud conspiracy: alleged indictment defects, a motion to disqualify an entire U.S. Attorney’s Office, and disputes over guideline calculations and sentencing disparities. Thiago de Souza Prado—an unauthorized Brazilian national ineligible to drive for Uber, Lyft, DoorDash, and similar platforms—participated in and eventually orchestrated a sophisticated scheme involving fake driver accounts, GPS-spoofing “bots,” and theft of personal data to pass background checks. Following a seven-day trial he was convicted of conspiracy and substantive wire fraud (18 U.S.C. §§ 1349, 1343) and aggravated identity theft (18 U.S.C. § 1028A) and sentenced to a total of 70 months.

On appeal Prado attacked (i) the mid-trial replacement of generic labels (“Rideshare Company A,” “Victim 1”) in the indictment with the actual names of the affected companies and individuals; (ii) the lower court’s refusal to disqualify the Massachusetts U.S. Attorney’s Office after Prado’s former counsel became its First Assistant; and (iii) the procedural and substantive reasonableness of the sentence. The First Circuit affirmed in full, clarifying a key point of federal criminal practice: substituting real victim names for placeholders is a mere matter of form that does not implicate the Fifth Amendment’s Presentment Clause, create a constructive amendment, or generate a prejudicial variance.

2. Summary of the Judgment

• Indictment Amendment. Adding victim names mid-trial was a formal, non-prejudicial change; the substance of the charges remained identical.
• Disqualification. The walling-off of former defense counsel-turned-First Assistant U.S. Attorney Joshua Levy sufficed; wholesale disqualification of the prosecution team was unwarranted.
• Sentencing Procedure. Any arguable guideline errors (loss amount; criminal-history point) were harmless because the district court made clear it would have imposed the same 46-month within-range term (plus the mandatory 24 months for § 1028A).
• Sentence Substantive Reasonableness. A 70-month aggregate sentence, though higher than co-defendants’, fell at the low end of the applicable range and reflected information the court learned during Prado’s trial; it did not punish the exercise of trial rights.

3. Analysis

3.1 Precedents Cited and Their Influence

1. Russell v. United States, 369 U.S. 749 (1962) – Distinguished. Russell bars substantive post-return amendments without a grand jury, but allows changes “merely of form.” The First Circuit relied on this carve-out.
2. United States v. Dowdell, 595 F.3d 50 (1st Cir. 2010) – Applied. Dowdell upheld correction of “cocaine” to “cocaine base” as formal; Dowdell’s logic guided the panel in finding the victim-name substitution innocuous.
3. United States v. Katana, 93 F.4th 521 (1st Cir. 2024) – Quoted for definitions of “constructive amendment” and “variance.” The court used Katana to frame the doctrinal tests.
4. Other “formal error” cases: Eirby (wrong penalty subsection), Rivera-Ruiz (name transposition), and Jervis (wrong date) erected a line of authority supporting minimal, non-substantive fixes.
5. Porter v. McCollum, 558 U.S. 30 (2009) & Strickland standard – Provided the ineffective-assistance framework when the district court addressed Prado’s ancillary complaints about counsel.
6. Bolden, 353 F.3d 870 (10th Cir. 2003); Vlahos; Whittaker; Caggiano – Cited to show the uniform reluctance of courts to disqualify entire U.S. Attorney’s Offices on conflict grounds.
7. Oullette, Ahmed, Ayala, Arif – Provide the “harmless-error where same sentence would be imposed” principle, invoked to neutralize guideline-calculation challenges.

3.2 Legal Reasoning

a) Indictment Amendment. The panel’s de novo review traced a three-step analysis:

1. Does the change modify the elements or broaden the bases for conviction?—No.
2. Does it create a mismatch between what the grand jury charged and what the petit jury found?—No.
3. Is the defendant prejudiced in trial preparation or exposure?—No evidence of such; counsel had the names long before trial, and Prado could not articulate any strategic shift he would have pursued.

Accordingly, the court labeled the name substitution “no more than replacing ‘John Doe’ with ‘James Smith’ – a cosmetic edit that leaves the gravamen untouched.”

b) Disqualification. Recognizing separation-of-powers concerns, the court reiterated the strong presumption that conflicts are cured by recusing the individual attorney, not the entire office. Prado conceded the doctrinal backdrop but offered no authority for the “all-or-nothing” approach he urged after DOJ recused the Massachusetts office from supervisory control. The ethics wall around Levy remained intact; therefore the drastic remedy was unnecessary.

c) Sentencing Procedure.

• Loss Amount. Even if no loss existed—Prado argued customers received their rides— the district judge stated it would “depart upward” to the same effective range because the guideline understates harm when criminals exploit identity information and platform vulnerabilities.
• Criminal-History Point. Any mis-labeling of Prado’s 2015 driving offense was harmless; his Criminal History Category would remain I regardless.

d) Substantive Reasonableness. The 70-month total was the lowest the court deemed “reasonable.” Information revealed during trial sharpened the court’s view of Prado’s centrality and sophistication, justifying a higher sentence than plea-bargaining co-defendants. The court expressly disclaimed penalizing Prado for exercising trial rights, curing potential “trial tax” concerns.

3.3 Potential Impact of the Decision

• Charging Practice. Prosecutors often anonymize victims in indictments to protect privacy or simplify pleadings. The ruling reassures that later disclosure of true names—even during trial—does not imperil convictions if the underlying factual narrative remains constant.
• Defense Strategy. Defense counsel must recognize that formal amendments will rarely succeed on appeal absent concrete prejudice. Pre-trial motions to dismiss or for a bill of particulars remain the proper vehicles for specificity complaints.
• Government Conflicts. The opinion reinforces a high threshold for disqualifying an entire U.S. Attorney’s Office. A documented ethics wall and DOJ reassignment are generally sufficient.
• Sentencing Litigation. The panel’s reliance on harmless-error where district courts announce alternative or fallback rationales encourages sentencing judges to create clear records about what sentence they would impose under varying calculations—shielding judgments from remand.

4. Complex Concepts Simplified

Constructive Amendment

Occurs when the trial evidence or instructions permit a jury to convict for conduct different from that charged, effectively usurping the grand jury’s role.

Variance

The indictment charges one thing, evidence proves the same crime but by different facts. Not necessarily fatal unless the difference prejudices the defendant.

Presentment Clause (Fifth Amendment)

Guarantees that federal felonies originate with a grand jury. Substantive alterations to an indictment after return violate this clause.

“Matter of Form” vs. “Matter of Substance”

Edits that leave the elements, time frame, actors, and overt acts intact are “form” (permitted); those that add, remove, or broaden elements are “substance” (forbidden without a new grand-jury return).

Aggravated Identity Theft (18 U.S.C. § 1028A)

Using another person’s identity during certain predicate crimes (e.g., wire fraud) carries a mandatory consecutive two-year prison term.

Ethics Wall / Screening

Administrative and physical measures preventing a conflicted attorney from accessing or influencing a specific case—often sufficient to avoid office-wide disqualification.

Harmless-Error Doctrine (Sentencing)

Where a court states on the record it would impose the same sentence irrespective of a guideline dispute, appellate courts will uphold the sentence absent contrary showing.

5. Conclusion

United States v. De Souza Prado is most notable for its clear rule that substituting actual victim names for anonymizing placeholders is a permissible, non-substantive change to an indictment. The decision tightens the line between cosmetic edits and grand-jury-implicating alterations, providing prosecutors and trial courts with practical guidance while cautioning defendants that relief hinges on demonstrable prejudice, not formalistic arguments.

Additionally, the opinion underscores the judiciary’s limited appetite for disqualifying whole prosecutorial offices and illustrates how sentencing judges can insulate their judgments from guideline miscalculations through explicit alternative findings. In the broader landscape of federal criminal procedure, Prado fortifies pragmatic flexibility in indictment drafting, clarifies conflict-screening expectations, and affirms the resilience of sentences adequately anchored in § 3553(a) factors and well-documented reasoning.