United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge
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).
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
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).
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).
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 ¶
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).
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.
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).
Petitioner pleads guilty to wire fraud and misbranding
offenses, in exchange for which the Government dismisses an
unrelated firearm charge.
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).
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).
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, ...