NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 9 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50062

Plaintiff-Appellee, D.C. No. 2:16-cr-00390-VAP-1 v.

JOSE LOZA, AKA Big Head, AKA C, AKA MEMORANDUM* Cartune, AKA Gordy, AKA JC, AKA Joey, AKA Joseph, AKA Jose Luis Loza, AKA P, AKA Pumpkin, AKA Pumpkin Head, AKA Toons,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, Chief District Judge, Presiding

Submitted August 3, 2022** Pasadena, California

Before: SILER,*** CALLAHAN, and H. THOMAS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Jose Luis Loza (“Defendant-Appellant” or “Loza”) raises two issues on

appeal from a jury trial verdict where he was found guilty of fourteen counts.

Loza’s indictment on these charges arose out of his involvement with the Canta

Ranas gang and the Mexican Mafia, a charged racketeering enterprise connecting

the two, and a public shootout at the intersection of these activities that resulted in

deaths and injury.

Before trial, Loza filed a motion to sever seven of the counts on the basis

that the charged racketeering enterprise was separate from the Mexican Mafia.

Loza argued that the shooting charges and the racketeering charges were separate

incidences and not part of a “common scheme or plan.” Loza also filed a motion to

compel the government to grant immunity to defense witnesses on the basis that

these witnesses would provide relevant testimony to the shooting that would

“directly contradict[]” testimony from government witnesses. The district court

denied both motions.

1. Loza argues the indictment was constructively amended at trial. When

a constructive amendment or fatal variance claim is raised for the first time on

appeal, we review it for plain error. See United States v. Ward, 747 F.3d. 1184,

1188 (9th Cir. 2014). Under plain-error review, the defendant bears the burden of

demonstrating prejudice. United States v. Olano, 507 U.S. 725, 734 (1993).

2 Constructive amendment “occurs when the charging terms of the indictment

are altered, either literally or in effect, by the prosecutor or a court after the grand

jury has last passed on them.” United States v. Adamson, 291 F.3d 606, 614 (9th

Cir. 2002) (internal quotation marks and citation omitted). This court recognizes

two ways that constructive amendment of an indictment occurs. Id. at 615. First, if

“there is a complex of facts presented at trial distinctly different from those set

forth in the charging instrument” then a constructive amendment of an indictment

may be found. Id. Second, if “the crime charged in the indictment was substantially

altered at trial, so that it was impossible to know whether the grand jury would

have indicted for the crime actually proved.” Id.

Here, the indictment alleged that Loza led “street-based operations” for the

Canta Ranas gang, that he was a member of the Mexican Mafia, and that a

racketeering enterprise existed consisting of the Canta Ranas gang members and

associates comprised of Mexican Mafia members. Testimony regarding this nexus

of Loza, the Canta Ranas gang, and the Mexican Mafia was offered at trial.

Similarly, the indictment alleged that the Mexican Mafia, as part of the

enterprise, was able to control criminal activities inside and outside of prison,

particular through street gangs, like Canta Ranas. This assertion was presented

again through testimony at trial. Both the indictment and the evidence at trial

detailed how Loza became a Mexican Mafia member and then carried out his

3 duties within the Canta Ranas gang while also taking instruction from the Mexican

Mafia on where to direct acts of violence. The facts presented in the indictment

were not distinctly different from those presented at trial. Accordingly, Loza’s

constructive argument fails.

Loza makes the same argument in his variance claim as he does for

constructive amendment. For the same reason discussed above, Loza’s variance

argument fails. Moreover, he has not demonstrated that the alleged variance was

prejudicial and “affected [his] substantial rights” as required by this court. See

United States v. Von Stoll, 726 F.2d 584, 587 (9th Cir. 1984)

2. Next, Loza argues that immunity was “effectively” granted to two

government witnesses. Loza contends that this “effective[]” immunity should have

required the court to compel immunity for defense witness Antonio Giron. Courts

are “extremely hesitant” to compel witness immunity because it “intrude[s] on the

Executive’s discretion to decide whom to prosecute.” United States v. Straub, 538

F.3d 1147, 1166 (9th Cir. 2008). However, immunity may be compelled if a

defendant can show the prosecution granted immunity to one or more government

witnesses but denied immunity to a defense witness that would have provided

testimony that “directly contradicted that of the government witness, with the

effect of so distorting the fact-finding process that the defendant was denied his

due process right to a fundamentally fair trial.” Id. at 1162.

4 The government did not grant formal immunity to a government witness,

which Loza concedes. Moreover, the government witnesses that Loza contends

received effective immunity did not offer testimony that directly contradicted that

offered by defense witness Giron. The fact-finding process was not distorted.

AFFIRMED.

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