13-386-cr
United States v. Siu Ping Yuen

                                        UNITED STATES COURT OF APPEALS
                                           FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th
day of May, two thousand fourteen.

PRESENT:
            AMALYA L. KEARSE,
            CHESTER J. STRAUB,
            SUSAN L. CARNEY,
                          Circuit Judges.
_______________________________________

UNITED STATES OF AMERICA,

                                          Appellee,

                                 -v.-                                          No. 13-386-cr

DOMINICK YUEN BONOMOLO, MEI CHUN TAM,
                 AKA Mei Tam Chun,

                                          Defendants,

SIU PING YUEN, AKA Pamela Yuen,

                        Defendant-Appellant.
_______________________________________

FOR DEFENDANT-APPELLANT:                                 Jonathan I. Edelstein, Edelstein & Grossman,
                                                         New York, NY.
FOR APPELLEE:                                              Martin S. Bell, Justin Anderson, Assistant U.S.
                                                           Attorneys, for Preet Bharara, U.S. Attorney for
                                                           the Southern District of New York, New
                                                           York, NY.


        Appeal from a January 25, 2013 judgment of the United States District Court for the

Southern District of New York (Loretta A. Preska, Chief Judge).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of conviction entered on January 25, 2013, is AFFIRMED.

        Siu Ping Yuen (also known as Pamela Yuen) appeals from the District Court’s judgment of

conviction entered on January 25, 2013, following a jury trial, on charges of conspiracy to commit

fraud, in violation of 18 U.S.C. § 371; Pell Grant fraud,1 in violation of 20 U.S.C. § 1097(a); and wire

fraud, in violation of 18 U.S.C. § 1343. She also challenges her sentence of 18 months’

imprisonment and 3 years’ supervised release.

        Until her arrest in April 2011, Yuen was the owner and director of USA Beauty School

International, Inc. (the “School”), a cosmetology school operating in lower Manhattan. From 2006

through 2010, the School participated in the Federal Pell Grant Program, administered by the United

States Department of Education (the “Department”). The Program provides financial aid to low-

income students to help cover the costs of their post-secondary education. The School received

approximately $4 million in such funds from 2006 through 2010. In response to the Department’s

concerns regarding the School’s financial aid claims, Department agents placed the School under

heightened scrutiny, eventually inspecting the School in May 2010 and uncovering numerous



        1 Section 1097(a) of Title 20 criminalizes (among other acts) the knowing and willful embezzlement

or obtaining by fraud, false statement, or forgery funds provided or insured through federal student assistance
programs. Although the January 25, 2013 judgment provides that Yuen is adjudicated guilty of
“Embezzlement,” its statutory reference is to the more broadly worded 20 U.S.C. § 1097(a). Yuen’s
indictment makes plain that the conviction relates to her participation in the Pell Grant Program. We
therefore refer to Yuen’s conviction under 20 U.S.C. § 1097(a) as one for “Pell Grant fraud.”
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inconsistencies in its academic records. This led to Yuen’s April 2011 arrest and subsequent

prosecution and conviction for Pell Grant fraud and related crimes.

        On appeal, Yuen argues principally that the District Court erred by (1) admitting certain

Department records into evidence at trial, and (2) denying without a hearing her motion to suppress

statements she made during an allegedly custodial interrogation. She further asserts that her

sentence was substantively unreasonable. We assume the parties’ familiarity with the underlying

facts, procedural history, and specification of issues for review, to which we refer only as necessary

to explain our decision to affirm.

        A.       The Admissibility of Exhibits 625 and 626

        Yuen challenges the District Court’s admission at trial of Government Exhibits 625 and 626.

These exhibits are print-outs provided by the government of computer-generated spreadsheets

detailing the Pell Grants received by the School and its students.2 Yuen contends that the District

Court erroneously admitted these exhibits under Federal Rule of Evidence 803(6), the business

records exception to the hearsay rule.

        We review the admission of business records for abuse of discretion, see United States v. Ford,

435 F.3d 204, 214 (2d Cir. 2006), examining the court’s legal interpretation of the Federal Rules of

Evidence de novo and its factual findings for clear error, see Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467,

469 (2d Cir. 1998). Rule 803(6) creates an exception to the hearsay rule for any

        record of an act [or] event . . . if: (A) the record was made at or near the time by – or
        from information transmitted by – someone with knowledge; (B) the record was
        kept in the course of a regularly conducted activity of a business . . . ; (C) making the
        record was a regular practice of that activity; . . . and (E) neither the source of
        information nor the method or circumstances of preparation indicate a lack of
        trustworthiness.

          2 As described by the Department, Exhibit 625 lists the Department’s authorizations of funding to

the School and the School’s drawdowns of that funding, from 2006 through 2012. Exhibit 626 purports to
list the amount of the Pell Grants received by each of the School’s students who participated in the Program
from 2007 through 2011.


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Fed. R. Evid. 803(6). The “principal precondition to admission of documents as business

records . . . is that the records have sufficient indicia of trustworthiness to be considered reliable.”

Saks Intern., Inc. v. M/V “Export Champion,” 817 F.2d 1011, 1013 (2d Cir. 1987). “A business record

may include data stored electronically . . . and later printed out . . . so long as the original computer

data compilation was prepared pursuant to a business duty in accordance with regular business

practice.” Potamkin Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d 627, 632 (2d Cir. 1994) (internal

quotation marks omitted).

        Yuen argues that these records failed for several reasons to meet objective standards of

reliability. First, Yuen contends that the government failed to prove that the data underlying the

exhibits were prepared pursuant to a business duty. The record belies this contention. Teresa

Martinez, a senior institutional review specialist with the Department, testified that the participating

schools submit the data incorporated into the Department spreadsheets in the regular course of

their business. She explained that the Department relies on the spreadsheets generated from that

data to conduct program reviews. The data were therefore submitted pursuant to a business duty.

        Second, Yuen argues that the data were impermissibly collated into spreadsheets for use in

litigation. The record shows, however, that the Department regularly used such spreadsheets for

program reviews, and thus that the original data compilations were prepared “pursuant to a . . .

regular business practice,” and not for use in litigation. Potamkin Cadillac, 38 F.3d at 632 (internal

quotation marks omitted). Printing out these records did not disqualify them from admissibility

under Rule 803(6).

        Third, Yuen argues that the government failed to show that the “source of information” or

“the method or circumstances of [its] preparation” were trustworthy. Fed. R. Evid. 803(6). In

addition to providing the testimony described above, however, Martinez explained that schools

submitted the underlying data to (1) the Department’s Common Origination and Disbursement
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System, which automatically transmitted the information to the Department’s database, and (2) the

National Student Loan Database System, which creates a spreadsheet that the Department maintains

in the ordinary course of business. She also testified that she verified the accuracy of portions of

the relevant data. On this basis, the District Court could reasonably find that Exhibits 625 and 626

bear “sufficient indicia of trustworthiness to be considered reliable.” Potamkin Cadillac, 38 F.3d at

632 (internal quotation marks omitted).

        Yuen argues further that the government failed to lay a proper foundation for admission of

the business records. To be admitted into evidence, the records must be authenticated by a

“custodian or another qualified witness,” unless they are self-authenticating. Fed. R. Evid. 803(6).

An individual provides an adequate foundation when her testimony demonstrates that she is

“sufficiently familiar with the business practice” of a relevant entity and that the “records were made

as part of that practice.” Phoenix Assocs. III v. Stone, 60 F.3d 95, 101 (2d Cir. 1995) (internal quotation

marks omitted). The District Court committed no error in finding that Martinez’s testimony

fulfilled these requirements.

        We therefore conclude that the District Court did not abuse its discretion in admitting

Exhibits 625 and 626.

        B.      Yuen’s Motion to Suppress

        Yuen also challenges the District Court’s denial, without a hearing, of her motion to

suppress statements that she made in an interview with Department agents during their May 2010

inspection of the School. During that interview, Yuen admitted (according to the testimony of a

Department employee) that two students received Pell Grants despite not having high school

diplomas. Yuen argues that the statements should have been suppressed because they were made

during an interrogation that she characterizes as custodial, and – absent advice of her constitutional

rights – in alleged contravention of Miranda v. Arizona, 384 U.S. 436 (1966). On consideration of

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Yuen’s motion, the District Court held that, even accepting as true the relevant facts alleged in

Yuen’s affidavit, the interrogation was not “custodial” and Yuen’s statements were therefore

admissible.

        Even assuming that the District Court erred in denying the motion or in failing to conduct a

hearing on the motion, however, we comfortably conclude that any error was harmless. We assess

the harmlessness of a court’s erroneous admission of a defendant’s custodial statement by

considering: “(1) the overall strength of the prosecution’s case; (2) the prosecutor’s conduct with

respect to the improperly admitted evidence; (3) the importance of the wrongly admitted testimony;

and (4) whether such evidence was cumulative of other properly admitted evidence.” Perkins v.

Herbert, 596 F.3d 161, 177 (2d Cir. 2010) (internal quotation marks omitted). On each of these

factors, Yuen’s challenge fails.

        The prosecution’s case against Yuen was strong even without the challenged statements:

there was abundant evidence demonstrating that Yuen “knowingly and willfully” committed the

fraud. 20 U.S.C. § 1097(a). Schools receiving Pell Grants must document student attendance and

ensure that students have high school diplomas or an equivalent. Multiple witnesses – all of whom

were employees of the school and some of whom were indicted co-conspirators – testified that

Yuen directed them to create fraudulent high school diplomas for students, sometimes assisting

them in performing the task. The record also contains testimony that School employees falsified

federal student aid applications and that Yuen participated in that process. In addition, ample

testimonial evidence demonstrated that Yuen encouraged School employees to falsify student

attendance records. The prosecution’s evidence of Yuen’s knowing and willful participation in the

fraud was thus strong even without Yuen’s statements during the 2010 interview.

        Further, the prosecution did not mention Yuen’s inculpatory statements during its opening

or its closing, and asked relatively few questions about the statements during the direct examination

                                                   6
of a supervisory agent of the Department. Instead, it emphasized the physical evidence and the

testimony of cooperating witnesses. The government relied little on the statements in pursuing the

prosecution.

         Finally, although it is true that confessions are “like no other evidence,” Arizona v. Fulminante,

499 U.S. 279, 296 (1991), Yuen’s statements fell well short of being a complete confession. Rather,

they concerned an “isolated aspect[] of the crime” and were “incriminating only when linked to

other evidence.” Id. Yuen’s statements were merely cumulative of the properly admitted evidence,

particularly in light of the extensive record evidence of Yuen’s forgery of high school diplomas.

         Considering these factors together, we conclude that any error in admitting Yuen’s

statements was harmless.

         C.      Yuen’s Sentence

         Finally, Yuen challenges the substantive reasonableness of her sentence. As a 77-year old

woman suffering from serious illness with a prognosis she describes as terminal, she argues that the

District Court took inadequate account of her medical circumstances and her charitable works,

among other factors, when it imposed the sentence requiring 18 months’ incarceration, all but 33

days of which she had served by August 28, 2013, when she was released on bail by order of our

Court.

         “We will . . . set aside a district court’s substantive determination only in exceptional cases

where the trial court’s decision cannot be located within the range of permissible decisions.” United

States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks omitted). Yuen

was sentenced to an 18-month term of imprisonment, representing a 69-month downward variance

from the low end of the applicable Guidelines range of 87 to 108 months. We are hard pressed to

imagine any reasonable basis for Yuen to characterize Chief Judge Preska’s judgment as falling

outside the range of permissible decisions, and therefore affirm Yuen’s sentence. We recommend

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that the Bureau of Prisons evaluate on an expedited basis any petition for compassionate release

filed by Yuen. See 18 U.S.C. § 3582(c)(1)(A).

                                                CONCLUSION

       We have considered Yuen’s remaining arguments on appeal and find them to be without

merit. For the reasons set out above, we AFFIRM the judgment of the District Court.



                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk of Court




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