The opinion of the court was delivered by: Robert W. Sweet, United States District Judge.
On October 1, 2002, Gary Au Yeung ("Yeung") pled guilty to one count of access device fraud in violation of 18 U.S.C. § 1029 (a) and one count of wire fraud in violation of 18 U.S.C. § 1343.
The following is based on an investigation conducted by a special agent (SA) of the Federal Bureau of Investigation ("FBI").
The SA made contact with an investigator employed by The Home Depot, a nationwide chain of retail home improvement stores, who informed the SA that several customers of Home Depot had reported to Home Depot that their Home Depot brand of credit cards had been fraudulently used to make unauthorized purchases from Home Depot. For example, the investigator informed that one such customer-victim ("V-1") discovered approximately twenty-six (26) separate unauthorized charges on V-1's Home Depot credit card account ("Account 1") between March 7, 2002 and April 1, 2002, totaling approximately $19,000. The investigator further informed that Home Depot records reflect that several of the unauthorized purchases made in these instances were purchases of store credits for useable later purchases, in the form of Home Depot "Gift Cards." Specifically, for example, Account 1 was used to make purchases of at least four gift cards, totaling approximately $1,000 in late March 2002 at a Home Depot location in Jericho, New York, which purchases are reflected in Home Depot records reviewed by the SA.
Other Home Depot records reviewed showed that the gift cards purchased with Account 1 were subsequently used on April 3, 2002 to make purchases of merchandise from Home Depot with a total value of approximately $916. Approximately three days later, that merchandise was returned to Home Depot and a single gift card containing store credit in the amount of approximately $916 ("Gift Card 5") was issued by Home Depot.
The SA spoke with an individual ("CW-1") who informed that CW-1 made purchases in the secondary market of Home Depot gift cards on several occasions from a single seller, to whom CW-1 was initially introduced through the Internet auction website known as eBay. CW-1 advised that CW-1 participated in the auction via a computer Internet connection in a state other than New York State.
eBay is a website on which users may buy and sell virtually any type of item, including collectibles and artwork, but also as in this case, retail store gift cards and credits. eBay acts as a venue for sellers to list items and buyers to bid on items. Prior to buying or selling on the site, users are required to register with eBay by providing a name, e-mail address, postal address, telephone number and, in the case of sellers, a credit card number. eBay can also identify users by their Internet Protocol address, or IP address, which is a unique numeric address used by computers on the Internet. As part of the registration process, eBay also permits a user to select an identity (known as a User ID) that identifies the user to other eBay users during an auction. Under eBay rules, the highest bidder at the end of an auction is obligated to complete the transaction with the seller, provided the bidder had met any minimum or reserve price set by the seller. Once an auction has been won, the seller and buyer generally determine between them the method and timing of shipping and payment, and in that context, communicate directly with each other.
CW-1 advised that CW-1 had been the winning bidder for two Home Depot gift cards sold over eBay by a seller using the User ID "EASTERNSTAND" in March 2002. Subsequently, according to CW-1, after having completed these transactions, CW-1 continued to communicated via Internet e-mail from CW-1's home state with the individual using User ID EASTERNSTAND and an e-mail address, "EASTERNSTAND@aol.com." CW-1 made additional purchases of approximately three more Home Depot gift cards from EASTERNSTAND. One was Gift Card 5. According to CW-1 the total value of all gift cards purchased from EASTERNSTAND was approximately $4,000.
CW-1 informed that CW-1 was instructed by EASTERNSTAND to send payment for those Gift Cards to a United States Post Office box located in Flushing, New York. The SA reviewed the postal records for that P.O. box that reflect that it was assigned to an individual using the name "Gary A. Yeung," who provided a New York driver's license number when registering for the P.O. box. The SA reviewed New York Department of Motor Vehicle records for that license number, which is assigned to the defendant, Yeung, as well as several photographs associated with that license.
The SA reviewed employment records of the Home Depot, which reflect that an individual named "Gary Au Yeung" with an address at 94-09 71st Avenue, Forest Hills, New York, was employed by Home Depot at its Glendale, New York store, first as a cashier and later as an assistant manager, between about 1998 up to December 2001. Those employment records reflect that Yeung received substantial training and experience in conducting credit card transactions, merchandise returns, and spotting of and reporting of fraudulent access device activity as part of his training at Home Depot. Those employment records also include a photograph of "Gary Au Yeung" which appeared to match the DMV photographs of defendant Yeung.
Subsequent to CW-1's purchases of gift cards from EASTERNSTAND described above, the SA bid for and "won" an auction over eBay on June 2, 2002, of a Home Depot gift card with a value of approximately $390 ("Gift Card 6"), the eBay seller of which identified himself as EASTERNSTAND. The SA then communicated with the seller further, via e-mail as late as June 11, 2002 to arrange for payment and shipment. The seller used the e-mail address EASTERNSTAND@aol.com. The seller shipped Gift Card 6, per the SA's instructions, to a private mail box located in New York, New York. Gift Card 6 was sent by the United States Postal Service, Priority Mail, and was postmarked as having come from Flushing, New York. The return address printed on the packaging in which Gift Card 6 was sent to the SA was the same P.O. box as that to which CW-1 was instructed to, and did, send payment for Gift Card 5 and the other gift cards CW-1 purchased from EASTERNSTAND. In one of the e-mail communications with the seller, the SA inquired as to whom payment should be made should the SA decide to pay by money order, and the seller wrote back that it should be sent to "P. Yeung" at that same P.O. box.
Upon receipt of Gift Card 6, the SA provided to the Home Depot investigator the identifying multi-digit number printed upon it, from which the investigator was able to glean its transaction history. According to the investigator, Gift Card 6 was the end result of several transactions similar to the transactions described above that resulted in Gift Card 5 that were initiated by fraudulent and unauthorized purchases made on April 27, 2002 on two separate Home Depot credit card accounts ("Account 2" and "Account 3").
As described above, several customers of Home Depot experienced their Home Depot brand credit cards and/or credit card accounts to have been fraudulently used to make unauthorized purchases from The Home Depot. The Home Depot investigator informed that the true account holders of Accounts 1, 2 and 3 had each shopped and made legitimate purchases of merchandise at Home Depot stores at which Yeung was employed at or around the relevant time period.
Based on Home Depot transaction records, The Home Depot investigator was able to pinpoint the date, March 15, 2002, time and location of one of the unauthorized and fraudulent purchases made in Account 1 at a store in Charlotte, North Carolina, and based on that information obtained a video tape from an in-store surveillance camera as it was conducted at the cash register checkout. The SA reviewed a copy of the tape and ...