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1028

Solicitation of Unauthorized Access Device or Selling Information Regarding an Application to Obtain an Access Device—18 U.S.C. § 1029(a)(6)

This second statutory Subsection (a)(6) of 18 U.S.C. § 1029 became effective September 13, 1994, as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 250007, 108 Stat. 1976. The primary conduct which this Subsection (a)(6) of 18 U.S.C. § 1029 is intended to address is fraudulent "solicitation" or issuance of credit cards or other access devices without the authorization of the card or device issuer. [NOTE: For Federal jurisdiction, all 18 U.S.C. § 1029(a)(1)-(7) offenses must "affect interstate or foreign commerce."]

Legislative History

The legislative history of this second statutory Subsection (a)(6) of 18 U.S.C. § 1029, at H.R. Rep. p. 102-242, 102d Cong., 2d Sess. (1992), only states that this Subsection (a)(6) is intended to prohibit "offering an access device, or selling information or an application to obtain an access device, without the authorization of the issuer of the device."

An example of conduct to which this Subsection (a)(6) would apply is the prosecution previously obtained under the mail fraud statute, 18 U.S.C. §  1341, in United States v. Zabawa, 39 F.3d 279 (10th Cir. 1994). In that case the defendants, in a fraudulent telemarketing scheme, notified 6,700 victims that they were "preapproved" to be issued a Visa card or Mastercard if they would send the schemers $100. The defendants were not authorized to issue any credit cards and, in fact, no cards were actually issued to the victims. This type of case can now be addressed directly under this Subsection (a)(6) of 18 U.S.C. § 1029, although the mail or wire fraud statutes could still be used to address such a fraud in which the scheme to defraud is executed or furthered through use of the United States Postal Service or interstate wiring.

[cited in USAM 9-49.000]