                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 09a0743n.06

                                             No. 08-2509

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                         FILED
UNITED STATES OF AMERICA,                           )                                Nov 18, 2009
                                                    )                          LEONARD GREEN, Clerk
        Plaintiff-Appellee,                         )
                                                    )
v.                                                  )   ON APPEAL FROM THE UNITED
                                                    )   STATES DISTRICT COURT FOR THE
TABITHA NSHOYA MAGOTI,                              )   WESTERN DISTRICT OF MICHIGAN
                                                    )
        Defendant-Appellant.                        )
                                                    )

Before: GILMAN and GRIFFIN, Circuit Judges; and STEEH, District Judge.*

        GEORGE CARAM STEEH, District Judge.

        Appellant Tabitha Nshoya Magoti was indicted on April 24, 2008, on one count of making

or using a false writing or document, in violation of 18 U.S.C. §1001(a)(3), and one count of

willfully making a materially false, fictitious or fraudulent statement to the Government, in violation

of 18 U.S.C. §1001(a)(2). The charges arose from Magoti’s backdating of an I-9 Employment

Eligibility Verification Form used to verify her eligibility to work in the United States and her false

statements made to government officials when turning over that form. During an August 4, 2008

final pretrial conference, the district court determined that if Magoti testified, her seven prior felony

convictions for uttering and publishing forged instruments would be admissible as impeachment



        *
       The Honorable George Caram Steeh, United States District Judge for the Eastern District
of Michigan, sitting by designation.

                                                  -1-
No. 08-2509
United States v. Magoti

evidence under Fed. R. Evid. 609(a)(2) because those offenses required proof of making false

statements. Magoti did not testify on her own behalf at trial, she says, because of the judge’s

conclusion that her prior convictions would be admissible if she did. At the beginning of trial on

August 12, 2008, the district court ruled that four fraudulent I-9 Forms of Magoti's employees that

Magoti submitted to officials along with her own I-9 Form were admissible to prove Magoti’s

knowledge and intent in deciding whether she willfully backdated her own Form. Magoti was

convicted by a jury on both counts on August 13, 2008. Magoti appeals her convictions on the

grounds that: (1) there was insufficient evidence to sustain her convictions; (2) the district court

abused its discretion in admitting other I-9 Forms at trial in violation of Federal Rule of Evidence

404(b); and (3) the district court abused its discretion under Federal Rule of Evidence 609 by stating

that it would admit her prior convictions for uttering and publishing forged instruments at trial if she

testified. For the reasons set forth below, we affirm.

                                    I. Sufficiency of the Evidence

       We review sufficiency-of-the-evidence claims de novo to determine “whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” United States v. Tocco, 200 F.3d

401, 424 (6th Cir. 2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

       Magoti’s argument that there was insufficient evidence that she willfully made a false

statement is without merit. Special Agent George testified at trial that Magoti provided Agents with

her I-9 Form dated January 1, 2002, told them it had been completed in 2002, and explained to the

Agents that she did not remember if anyone had helped her complete the I-9 Form because she had

                                                  -2-
No. 08-2509
United States v. Magoti

filled it out “so long ago.” George also testified that Magoti later admitted she had not created her

I-9 Form in 2002, but had actually created it after being subpoenaed in 2007. Viewing the Agents’

testimony, Magoti’s I-9 Form, and the additional I-9 Forms presented to the jury in a light most

favorable to the prosecution, any rational trier of fact could have found that Magoti knowingly,

willfully, and falsely represented in both her I-9 Form and in her oral statements to the Agents that

her I-9 Form was completed on January 1, 2002. See Tocco, 200 F.3d at 424; See United States v.

Daughtry, 48 F.3d 829, 831-32 (4th Cir. 1995), vacated on other grounds, 516 U.S. 984 (1995)); See

Sixth Circuit Pattern Criminal Jury Instructions, 2005 Revised Edition, § 13.03.

       Magoti’s argument that backdating the Form is not a material misrepresentation, is without

merit. A statement is material if it “has the natural tendency to influence or is capable of influencing

a decision” of the Bureau of Immigration of Customs Enforcement. United States v. Lutz, 154 F.3d

581, 588 (6th Cir. 1998). Viewing the evidence presented to the jury in a light most favorable to the

prosecution, a rational trier of fact could have found that Magoti’s backdating of her I-9 Form and

misrepresentations to Agents that she completed the I-9 Form on January 1, 2002 had a natural

tendency to influence ICE’s investigation. See Tocco, 200 F.3d at 424; Lutz, 154 F.3d at 588.

       Magoti argues that Agent George’s testimony about her oral statements was too contradictory

and insufficient to sustain the conviction. Viewing the testimony in a light most favorable to the

prosecution, any rational trier of fact could have believed both the testimony of Agent George and

the testimony of Agent Burgess, who testified he could not recall whether Magoti told them she had

filled out her I-9 Form in 2002. See Tocco, 200 F.3d at 424. The Agents’ credibility was properly

a decision for the jury. See United States v. Wright, 16 F.3d 1429, 1440 (6th Cir. 1994).

                                                  -3-
No. 08-2509
United States v. Magoti

       Magoti argues that her own I-9 Form was rendered a “legal nullity” because she verified the

form as both employer and employee. She argues, without supporting authority, that her completion

of the I-9 Form for herself could not support a finding of criminal liability under 18 U.S.C. § 1001.

The argument is baseless. Magoti was convicted of making a false writing and a false statement to

ICE Agents. The fact that Magoti was acting as both employer and employee does not nullify her

duty to truthfully represent her work status.

                                 II. Admission of 404(b) Evidence

       Magoti objects to the admission under Federal Rule of Evidence 404(b) of the four other I-9

Forms that she completed for her employees. Generally, evidence of other crimes, wrongs, or acts

are not admissible to show that a person acted in conformity with those crimes, wrongs, or acts when

committing a charged crime. Such evidence “may, however, be admissible for other purposes, such

as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident.” Fed. R. Evid. 404(b). The district court found that the four I-9 Forms were admissible

under Rule 404(b) to prove Magoti’s knowledge and intent with regard to whether she willfully

backdated her own I-9 Form.

       In reviewing Rule 404(b) determinations, this Circuit employs

       a three-part test, reviewing (1) for clear error the district court’s determination that
       the 'other act' took place; (2) de novo the district court’s legal determination that the
       evidence was admissible for a proper purpose; and (3) for abuse of discretion the
       district court’s determination that the probative value of the other acts evidence is not
       substantially outweighed by its unfairly prejudicial effect.

United States v. Bell, 516 F.3d 432, 440 (6th Cir. 2008). An error in the admission of other-acts

evidence constitutes “harmless error” if the other record evidence of guilt is overwhelming,

                                                 -4-
No. 08-2509
United States v. Magoti

eliminating any fair assurance that the conviction was substantially swayed by the error. United

States v. Murphy, 241 F.3d 447, 453 (6th Cir. 2001).

       First, the district court did not clearly err in finding that there was sufficient evidence to

conclude that Magoti had completed and submitted the four I-9 Forms for her employees. Magoti’s

counsel points to differences between the forms and argues that Magoti may not have completed

them. The one difference of significance is that Magoti's name is misspelled on one of the four I-9

Forms when it was written with two “t”s. At trial, Magoti did not advance an explanation or

evidence of any other person who may have filled out the I-9 Forms. It is undisputed that Magoti

submitted the I-9 Forms of her employees to the Agents. The district court could find on the whole

record that a reasonable jury could conclude Magoti completed or ratified the four other I-9 Forms

and submitted them for review by the Agents. See Bell, 516 F.3d at 441.

        Second, the district court found that the four employee I-9 Forms were probative of Magoti’s

knowledge and intent in determining whether she willfully backdated her own I-9 Form. As an

element of the False Writing and False Statement charges, the Government was required to prove

beyond a reasonable doubt that Magoti “knowingly and willfully” made false statements to the ICE

Agents. United States v. White, 492 F.3d 380, 396 (6th Cir. 2007); United States v. Logan, 250 F.3d

350, 359 (6th Cir. 2001). Magoti’s defense was that she innocently backdated her I-9 Form and

innocently represented that she had in fact completed the I-9 Form on January 1, 2002. Under Rule

404(b), evidence of other crimes, wrongs, or acts is admissible to prove “intent” and “absence of

mistake.” Fed. R. Evid. 404(b). The district court correctly found that the four I-9 Forms were



                                                -5-
No. 08-2509
United States v. Magoti

probative of the material issue of intent; that is, whether Magoti “knowingly and willfully,” or

innocently, made the false writing and false statement. See Bell, 516 F.3d at 441.

       Third, the district court did not abuse its discretion in finding that the probative value of the

four employee I-9 Forms outweighed the risk of unfair prejudice. See Bell, 516 F.3d at 440.

Alternatively, any error was harmless considering the other overwhelming record evidence of

Magoti’s guilt. See Murphy, 241 F.3d at 453. Agents testified that Magoti admitted completing her

I-9 Form in 2007 after she had previously represented that the I-9 Form was completed it in 2002.

The form was admittedly backdated to January 1, 2002.

                               III. Admissibility of Prior Convictions

       Federal Rule of Evidence 609(a)(2) states that evidence “that any witness has been convicted

of a crime shall be admitted, regardless of the punishment, if it readily can be determined that

establishing the elements of the crime required proof or admission of an act of dishonesty or false

statement by the witness.” As with any other witness, defendants in a criminal trial are subject to

impeachment if they take the stand in their own defense. United States v. Walker, 313 F.2d 236, 238

(6th Cir. 1963). A trial court’s decision whether to admit evidence of prior convictions under

Federal Rule of Evidence 609 is reviewed for an abuse of discretion. United States v. Gaitan-

Acevedo, 148 F.3d 577, 591 (6th Cir. 1998).

       The district court did not abuse its discretion in concluding that Magoti’s prior Michigan

convictions for uttering and publishing were admissible under Rule 609. Magoti was convicted of

seven violations of M.C.L. § 750.249. The statute prohibits “utter[ing] and publish[ing] as true, a

false, forged, altered, or counterfeit record, deed, instrument or other writing listed in section 248

                                                 -6-
No. 08-2509
United States v. Magoti

knowing it to be false, altered, forged, or counterfeit, with intent to injure of defraud.” This Court

has previously held that a conviction for uttering and publishing altered money orders is a crime

“involving dishonesty.” United States v. Cox, 159 F. App’x 654, 657 (6th Cir. 2005). Further, a

conviction under M.C.L. § 750.249 for uttering and publishing requires proof that the person

knowingly uttered and published a “false” writing representing it to be “true.” Accordingly, Magoti’s

convictions required proof of “an act of dishonesty or false statement” as contemplated by Rule

609(a)(2). The district court did not abuse its discretion in ruling that Magoti’s prior uttering and

publishing convictions were admissible under Rule 609(a)(2). See Gaitan-Acevedo, 148 F.3d at 591.

                                                 IV.

       For these reasons, we affirm the judgment of the district court.




                                                 -7-
