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Rezapour v. United States

United States District Court, W.D. North Carolina, Charlotte Division

May 18, 2018



          Frank D. Whitney, Chief United States District Judge

         THIS MATTER is before the Court on Petitioner Kamran Rezapour's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1), and on the Government's Motion to Dismiss and Response to Motion to Vacate, (Doc. No. 3).

         I. BACKGROUND

         A. Petitioner obtains, markets, sells, and distributes erectile-dysfunction products that contained prescription drugs carrying identified risks, while representing to the public that the products were “100% safe and natural.”

         Between 2009 and 2013, Petitioner owned and operated Nutrition for Health, Inc. and Mojo Risen, LLC, companies through which he sold male-enhancement and erectile-dysfunction drugs, including Mojo Risen, Mojo Sensation, and VajiVedic. (Crim. No. 3:13cr215-FDW-DCK-1, Doc. No. 35 at ¶ 7). Petitioner advertised these products as “dietary supplements” that were “herbal” and “100% safe and natural.” (Id. at ¶¶ 6, 9-11). In fact, the products contained pharmaceutical and prescription compounds, including sildenafil, the active ingredient in the prescription drug, Viagra, and its chemical analog noracetildinafil, which required approval from the United States Food and Drug Administration to market and distribute. (Id. at ¶¶ 6, 13). Petitioner smuggled these compounds into the United States from China but did not list sildenafil, noracetildenafil, or any other prescription ingredient on the products' packaging or in the products' advertising material. (Id. at ¶¶ 13-14). To evade United States customs authorities and the FDA, Petitioner and his Chinese supplier falsely claimed that the imported shipments contained “paint products, ” “care products, ” and “gifts.” (Id. at ¶ 15).

         On both the products' packaging and in marketing information, including on the companies' websites, Petitioner represented that these products were safe and natural, stating, for example, that “Mojo Risen is a safe, revolutionary sexual formula for men that combines ancient Chinese school of thought and modern science to significantly support sexual stamina, performance and pleasure.” (Id. at ¶ 10). Petitioner claimed on his websites that Mojo Risen was without “harsh and dangerous side effects, ” representing that the ingredients were “all natural, ” as opposed to the products of modern science, which had “yet to provide men with a sexual enhancement product that comes without a laundry list of harsh side effects.” (Id. at ¶ 11). Similarly, Petitioner claimed on his website that VajiVedic was a “non-prescription supplement” containing “an all-natural proprietary blend of herbs.” (Id. at ¶ 12). According to Petitioner's website, “when you take VajiVedic, you can banish any worries of the harsh, potential life-threatening side effects found with prescription sexual stimulants” because his “all-natural combination of herbs and other substances has no unwanted side effects.” (Id.). In addition to including false claims such as these, Petitioner's products also did not bear the symbol “Rx only” on their labels, as is required for all prescription drugs. (Id. at ¶ 14).

         After receiving the “sex material” from his Chinese supplier, Petitioner contracted with manufacturers in Michigan and Utah to encapsulate the smuggled ingredients according to Petitioner's formulas in order to produce Mojo Risen, VajiVedic, and other erectile-dysfunction products. (Id. at ¶ 16). Petitioner then directed the manufacturers to send the encapsulated product to a packaging center in New York or to distribution centers maintained by Petitioner in Utah. (Id. at ¶ 17).

         Petitioner accepted customer orders through his websites and by telephone and received payment by both credit card and checks. (Id. at ¶¶ 7-8, 18). Petitioner delivered the product via the United States mail and commercial interstate carriers, including United Parcel Service. (Id. at ¶ 8). Petitioner also distributed his products to other wholesalers for re-distribution. (Id. at ¶ 18). Between January 2009 and April 2013, Petitioner received more than $4, 900, 000 in payments from consumers and wholesalers nationwide. (Id., at ¶ 19).

         In April 2013, federal agents executed a search warrant at Petitioner's home and business in Creston, North Carolina. (WDNC No. 3:13MJ128, Doc. 1 at 2-3). During their search of Petitioner's home, agents seized a .380 caliber pistol, hundreds of rounds of ammunition, gun-cleaning supplies, a rifle scope, and other firearm paraphernalia. (Id. at 2-3). One of Petitioner's employees reported that he saw Petitioner shoot a pistol on his property in 2012. (Id. at 3-4). Petitioner told agents that he was the only person who had access to his home, though he also told agents that he did not know how the firearm and ammunition got into his home or who owned them. (Id.).

         When agents searched Petitioner's home, he was a convicted felon, having been convicted of conspiracy to distribute LSD in the United States District Court for the Southern District of Texas in 1990 and of illegal investment or possession of cocaine in Harris County, Texas in 1989. (Crim. No. 3:13cr215-FDW-DCK, Doc. No. 35 at ¶¶ 48-49). Petitioner was also on parole following his release from the Texas Department of Criminal Justice, with his parole set to expire on January 10, 2018. (Id. at ¶ 49).

         B. Petitioner pleads guilty to wire fraud and misbranding offenses, in exchange for which the Government dismisses an unrelated firearm charge.

         Two days after agents searched Petitioner's home and seized the pistol and ammunition, Petitioner was charged by criminal complaint with possessing a firearm as a convicted felon, 18 U.S.C. § 922(g)(1). (WDNC No. 3:13MJ128, Doc. No. 1 at 1). Four months later, Petitioner was charged by Bill of Information with wire fraud, 18 U.S.C. § 1343; and two counts of misbranding, 21 U.S.C. §§ 331(a) and 333(a)(2). (Crim. No. 3:13cr215-FDW-DCK, Doc. No. 14 at pp. 9-10). Specifically, the Bill of Information alleged that Petitioner participated in a scheme to defraud for the purpose of obtaining money and property through false and fraudulent representations posted on his website, on which he falsely stated that the ingredients of Mojo Risen were “100% safe and natural.” (Id. at 9). With respect to the misbranding offenses, the Bill of Information alleged that Petitioner, intending to defraud and mislead, misbranded Mojo Risen and VajiVedic by employing labeling (1) that was false and misleading, (2) that did not bear the established name and quantity of each active ingredient; and (3) that failed to bear the symbol “Rx only” as required because they were prescription drugs. (Id. at 10).

         On the same day the Bill of Information was filed, Petitioner entered into a plea agreement with the Government, in which he agreed to plead guilty to the charged offenses. (Id., Doc. No. 15 at ¶ 1). In exchange, the Government agreed to dismiss the complaint charging Petitioner with being a felon in possession of a firearm. (Id. at ¶ 2). Petitioner declined to follow through with his guilty plea, however, eventually seeking and obtaining new counsel. (See id., Doc. No. 51 at p. 4). A month later, Petitioner was indicted by a federal grand jury and charged with possession of a firearm and ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Id., Doc. No. 1).

         Represented by his new counsel, Petitioner entered into a second plea agreement with the Government, again agreeing to plead guilty to the wire-fraud and misbranding offenses alleged in the Bill of Information. (Id., Doc. No. 26 at ¶ 1). In exchange for Petitioner's guilty plea, the Government agreed to dismiss the felon-in-possession indictment against him. (Id. at ¶ 2). The parties stipulated in their agreement that Petitioner's offense resulted in a loss of more than $2.5 million but less than $7 million, that there were more than 250 victims of Petitioner's scheme to defraud, and that the offense conduct involved a conscious or reckless risk of death or serious bodily injury. (Id. at ¶ 7). Additionally, Petitioner agreed, “in exchange for the concessions made by the United States, ” to waive his right to appeal his conviction or sentence or to contest his conviction or sentence in a motion to vacate under U.S.C. § 2255, ...

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