Can a constructive amendment to a criminal charge be considered constructive amendment?

We disagree. A 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 upon them," United States v. Ward , 747 F.3d 1184, 1189 (9th Cir. 2014) (quoting United States v. Von Stoll , 726 F.2d 584, 586 (9th Cir. 1984) ), such as "where (1) there is a complex of facts [presented at trial] distinctly different from those set forth in the charging instrument, or (2) 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."

[947 F.3d 1119]