This is Andy’s Fox 13 interview for SingleAndDating.info, the precursor to Xtagged.com. It’s a nice interview full of testimonials and such and Andy used it to con investors out of their money later on. The thing that makes this video so funny (and the reason it makes our “dumbest Videos” list) is the SECOND part of the segment, which most people never bother to watch.
In the second part of the segment, Fox 13 interviews officials from the Salt Lake Police Department who warn about the DANGERS of using Andy’s dating website!
They correctly point out that:
The police department does not mention that Andy didn’t have the permission of the Utah DMV to use license plate images on his website, but that’s an important consideration also.
This Andy’s Thumb Scan video. In this ridiculous display of Andy’s delusional mental state, he pretends to have invented an app called “Bluetooth-Profiler” that scans your fingerprint, and can start your car after verifying your identity. The app even claims (look closely at the text on the phone) to “stop theft, sex offenders, and aid the FBI and CIA” at doing what it is they do.
This video is ridiculous for several reasons:
First of all, Andy is using an app that already exists called the ‘CSI App’ that doesn’t ACTUALLY read your fingerprint, but can be downloaded form the Apple App Store for a few bucks. Ryion downloaded his own copy and laughed his butt off.
Second, Andy is clearly using a remote starter hidden in his pocket (or being used by a friend standing nearby) to start the car. This is an obvious trick, especially to someone who has a remote starter…like me. We actually have images of the remote starter Andy used. My attorney downloaded it from Andy’s Xtagged website.
Finally, even if this app were for real, it wouldn’t make any sense! A remote starter app that reads your fingerprints (this generation iPhone isn’t sensitive enough to read a fingerprint) is one thing, but how exactly does a remote starter stop sex offenders? How would a remote starter, even one with fingerprint identification, aid the CIA? To suggest the FBI is already a stretch, but to say the CIA means that Andy has completely lost his marbles!
…and what does all this have to do with blue-tooth?
You can watch Andy try this trick again in the daylight in this video.
This is Andy Esquivel’s famous Mariah Carey video. In this video Andy is drunk and jumping around his mother’s living room pretending to wave a can of the new energy drink in his hands. He’s standing in front of the projected image of a Youtube video of Mariah Carey speaking at an awards show in Palm Springs. The video has credits on it identifying it’s source and Andy has taken aluminum foil to the wall where the images is projected to obscure those credits.
In the video, Andy claims that he’s in the home of one of his rich and “spoiled” investors watching this video on a “really big screen.” Of course this is one of Andy’s many fantasies. You can see the shadow of his mother’s ceiling fan on the image projected on the wall and it’s obvious he’s using a laptop projector. We also know this is his mother’s house because he walks you through it in this video which gives a clearer image of the living room and the projector used. A video walk-through of the upstairs can be found here. In the walk-through videos, Andy’s daughter’s toy car can clearly be seen in a corner, Andy’s car is in the parking lot, you get a view of the room where the towing video was shot so once again it’s clear this place is not owned by a rich investor.
When Andy first sent me this ridiculous video, I was so upset that I told him never to send garbage like this again:
Dude, that’s the stupidest thing I’ve ever seen in my life! Please don’t waste my time with crap like that anymore. I’m very busy these days.
Steve Klemark supposedly responded with the following:
You Have Been removed from Xtagged mail list! Dude my name is Steve as it read at the bottom of your email. And know that i see your from UTAH, I need to no longer wounder why Andy left There! But i will wounder why. Andy wants to buy party Utah, now That i Know who you are, and will see about that, I can build him same site For pennies on the dollar or get one of the many temples out there. and name it Utahwhatever, See its not nice to be a You, Dude This is for charity, you know the thing that partyutah.com could have built from being that all your sites about is bars clubs you know Napkin nights sort of thing. you could have applied free taxi service to your site, where people could have logged on to your site to get free taxi service! OK Now i just figured out why Andy wanted your site. And proper men do not sent emails with swear words, we are a family based company because of the safety aspect of site And Buzz/wiser the commercial that would have aired on your site teaches kids responsibility unlike 1995 Budweiser’s that taught kids to remember Budweiser when they turn 21. so just so you know we have been getting positive feedback from this, you are the only negative feedback THX.
P.S ASS-WISER Will be available soon near YOU! Its guaranteed to make you think of other people than yourself!
Good Day Sir Ass-A-Lot!
Steve K co-owner of Xtagged and hopefully soon Buzz/Wiser!
No need to email me back until you have taken your dose of ASS-WISER, Wow i am still in shock of who you are and that this is forrrrr! charity period. God Bless
After I received this ranting, crazy email from Andy pretending to be Steve Klemark, I knew I was dealing with a nut! It was at this time that I began researching Andy to see if he was for real and found Ryion Butcher’s blog. A full breakdown of this email exchange can be found in this document compiled by my mother, who was pretending to be the Xtagged CEO at the time.
Here’s another stupid Andy video. Here Andy once again claims to have sold Xtagged, the fake company he used to scan several Utah investors out of tens of thousands of dollars, but he does so in the shape of a frog while announcing the launch of a fake energy drink. This is Andy’s second most hilarious video ever (the Mariah Carey video takes the award there) but it’s one of our lost favorites.
Enjoy this gem while we prepare other classics for upload!
Well, we’ve finally located Andy’s dumbest and most revealign video. I call this the “Healthcare Video” because about 5 minutes into it, Andy claims that he’s using 51% of the profits from the scam to fix healthcare. This is about the time when Congress was debating Obama’s healthcare reform bill, so it goes to show Andy’s lack of creativity.
This video is the most telling of all Andy recordings because it was made before he realized he’d be open to the intense scrutiny of this blog or it’s predecessor massage board thread. In it he shows off his full lunatic glory by bragging with wild abandon about the millions of dollars he could be making without any regard for physical reality. Over time Andy’s videos became slightly (but not much) more restrained and he took a little (but not much) more care to make claims that weren’t as easy to invalidate.
To add to the fun of this video, I’ve decided to break the lies down by video timestamp. This will allow the viewer to jump to the funniest parts of the production without having to wait through other less interesting claims along the way.
Since he’s facing three felony counts of securities fraud, I think the answer is clear…”You are, Andy!”
Over the course of the last several months, Andy Esquivel has written the Utah courts several times to ask for more time to find an attorney. Each time Andy sends a letter to the court, it becomes a matter of public record (a fact which Andy is completely ignorant of). Because these letters are a matter of public record, anyone with a good attorney (or access to a public library and a basic knowledge of what to look for) can gain access to copies of those letters. Below you will find links to the letters Andy has sent to the court so far, including one in which Andy openly wonders how in the world we are able to gain access to these letters in the first place.
Letter complaining that these letters are a matter of public record [PDF] (case#101101231)
Letter asking for more time and claiming that Ron Yengich is his attorney [PDF] (case#111701135)
4TH DISTRICT CT – AF
UTAH COUNTY, STATE OF UTAH
CEDAR HILLS CITY, : MINUTES
Plaintiff, : CONTINUANCE
vs. : Case No: 101101231 MO
ANDRES ESQUIVEL, : Judge: THOMAS LOW
Defendant. : Date: December 7, 2011
Prosecutor: MERRILL, TIMOTHY G
Defendant’s Attorney(s): MICHAEL T HOLJE
Date of birth: September 8, 1970
Tape Number: 2 Tape Count: 9.46
1. ELECTRONIC COMMUNICATION HARASSMENT – Class B Misdemeanor
Plea: Not Guilty
The Defendant’s counsel Michael Holje.
Reason for continuance:
The motion is granted.
PRETRIAL CONFERENCE is scheduled.
Time: 02:30 p.m.
Location: Courtrm 1, 3rd Floor
Fourth District Court
75 East 80 North
American Fork, UT 84003-0986
Before Judge: CHRISTINE JOHNSON
(My attorney’s official response to Andy Esquivel’s repeated threat to “sue”)
September 10, 2010
Dear Mr. Esquivel,
This letter is in response to your incessant refrain that you will “see [my client] in federal court.” The short response is – I very much doubt it. Although the threat has long since been rendered hollow through its shear repetition (to say nothing of the lawsuits that you have several times claimed to have already filed), I am aware of no legitimate basis that would support your initiation of legal action against Mr. Acumen. While I will not waste my client’s money outlining every reason that is so, I will endeavor to provide a rough overview.
While I cannot know the precise claims you would assert against my client, I will assume them to be substantially similar to those included in the complaint that was the focus of the YouTube video that you posted on Friday, July 23, 2010 (link), which complaint you said would be filed the following Monday – July 26, 2010.
Request for Injunctive Relief
Your complaint begins with a request that the Court issue a “preliminary and permanent injunction enjoining” Mr. Acumen from blogging, which speech you allege to be defamatory. This relief is clearly barred by Article II, Section 10 of the Colorado Constitution, which provides, without qualification, that “every person shall be free to speak, write, or publish whatever he will on any subject, being responsible for all abuse of that liberty.” The Colorado Supreme Court has repeatedly held that this provision provides broader protection for speech than does the First Amendment. See, e.g., Bock v. Westminster Mall, 819 P.2d 55, 59-60 (Colo. 1991) (collecting cases).
Finally, the Colorado Court of Appeals has specifically held that defamatory speech (which Mr. Acumen’s speech is not), while actionable in damages, cannot be enjoined. DeGroen v. Mark Toyota-Volvo, Inc., 811 P.2d 443 (Colo. App. 1991) (holding that injunctive relief is not available against speech activity, because the harm to reputation is insufficient to justify that remedy).
Alternative Tort Claims
Your remaining claims – Intentional Infliction of Emotional Distress, Intentional Interference with Business Relations, and Defamation – can all be effectively categorized as defamation, and defamation-like claims. Considering claims such as yours, courts around the country have uniformly held that a plaintiff may not make an “end run” around the First Amendment by employing alternative tort labels to what is, in essence, a speech claim. As a result, a court would only consider your alternative tort claims if you are able to establish the elements of a defamation claim.
However, even if the defamation claim were actionable (which it is plainly not), and your other claims could possibly proceed, there are several reasons why your alternative speech claims warrant dismissal. With regard to the “Outrageous Conduct” claim, it is worth noting that corporations – even were those listed as plaintiffs to actually exist – cannot suffer emotional distress. Thus this claim cannot be brought on their behalf. In any event, however, it is plain that Mr. Acumen’s actions – uncovering and publicizing your highly suspect business dealings is not the sort of conduct that would strike one as at all “outrageous,” especially given the precedent set by case law.
There are myriad problems with your claim for Intentional Interference with Contract as well. I’ll spare you the complete scholarly dissertation for why that is so, but suffice it to say that such a claim would require that you identify real contracts that, but for my client’s conduct, you would have been able to close. What evidence you have proffered so far appears quite implausible – a characterization that, admittedly, may push too far the boundaries of acceptable euphemism.
Part of what makes defamation law so interesting for practitioners is the stories that come out about the plaintiffs. While defamation plaintiffs are often colorful characters, such as yourself, the real difference lies in the procedural aspects of the claim. As you may be aware, a plaintiff’s personal history and character are usually inadmissible inasmuch as they are generally irrelevant to the questions at issue in the case. But in a defamation claim, the question at issue is whether the plaintiff’s character has been damaged by the defendant. In addition, the plaintiff has the burden of proving that he has a good character that has been damaged, and that the statements in question were false.
Thus, were you to actually file suit for defamation, your character would be very much at issue. This would include your criminal history: beginning with your initial federal felony and continuing through your 2004 Utah Federal Court conviction for being a felon in possession of a firearm and its accompanying sentence to six months in federal prison. See U.S. v. Andres Esquivel (D. Utah Case No. 2:03-CR-000293-001) (reflecting also that the defendant’s bond was revoked after court-ordered drug tests in May and August 2003 revealed the presence of methamphetamine). Also at interest would be any outstanding warrants in Utah for unpaid child support (should any exist); your by-now-infamous run-in with law enforcement authorities in Bountiful (which I believe you said someone had filmed from the back-seat of your Lamborghini); as well as the three securities fraud cases pending against you in Utah.
I should note that you may perceive the previous paragraph as a threat on my client’s part. It is not. It is simply a statement of fact. When a plaintiff claims to be a man of good character who has been maligned by a defendant, that defendant has the right – and his attorney has a corresponding duty – to zealously investigate whether the plaintiff’s claim of good character is well founded.
As a result, much of our inquiry would be naturally focused on the question of whether Xtagged.com really is a “scam,” a statement that you have taken particular issue with. That would necessarily involve the investigation of the company’s finances – who invested what, and where the money went (all of which evidence would be directly relevant to the case and, should you refuse to disclose it, is almost certain to be ordered produced by the court). Another area of interest would be Xtagged’s much advertised “facial recognition technology.” I am very interested to see precisely how you managed to invent software that is capable of accurately recognizing facial features within low-resolution cell-phone pictures – a programming feat that continues to elude the rest of the country, despite the many of billions of dollars thus-far devoted to the problem.
Also relevant to Mr. Acumen’s defense against any claim premised upon his statement that your businesses are “scams” would be your easily discovered and stunningly-flagrant violations of federal intellectual property laws. The most recent example, of course, is the revelation that your Buzz/Wiser drink (along with nearly all of its website advertising) appears to have been merely a direct copy of “Security Feel Better,” a European drink that has just begun to be sold in the United States, as well as its website. You’ll likely recall the profanity-laced e-mail and cease and desist letter that you received from the manufacturer of that product.
Of course, that was not the first cease and desist letter that you received regarding your misuse of intellectual property and claim of affiliation with more famous brands. You’ll also likely recall contact by representatives from New Belgium Brewing and Mothers Against Drunk Driving.
Finally, a defendant in a defamation case is naturally concerned about damages as well. Mr. Acumen would thus subpoena evidence regarding how many subscribers Xtagged had prior to his blog postings, and how many after. In addition, he would seek solid evidence of actual orders placed for your so-called “Buzz/Wiser” drink, and for “Wiser E-Cigarettes.”
Sadly, because your case would unlikely survive a motion to dismiss, it is likely that observers would be deprived of the benefit of the colorful stories that would surely come out of any defamation case that you filed. To give just one example, your “YouTube Complaint” fails to specify the precise statements that you allege to be defamatory. This is cause for dismissal for failure to state a claim.
Were you to attempt to provide adequate specificity, you would likely find that many of the allegedly defamatory statements that you attribute to Mr. Acumen were not actually made by Mr. Acumen. While many of the posts on Mr. Acumen’s UtahRaves.com message board were posted by Mr. Acumen (all of which are identified as having been written by “dacumen”), most were not. Pursuant to Section 230 of the Communications Decency Act of 1996 (“Section 230”), Mr. Acumen cannot be held liable for the postings he did not author. Looking at the remaining posts, I believe that you will find that they constitute either true statements of fact, or statements of rhetorical hyperbole that no one would understand to be literally true and that thus cannot be the basis of a defamation action. And, while you surely contest this, any other message board statements regarding you appear to clearly fall within the boundaries of substantial truth – if not literal truth.
Finally, you should be aware that should you file a lawsuit against Mr. Acumen, and the lawsuit is dismissed before the defendant is required to answer, Section 13-17-201 of the Colorado Revised Statutes provides that you “shall” be liable for Mr. Acumen’s reasonable attorney’s fees in defending the action. Given your meager financial resources, your fellow plaintiffs would most likely be held responsible for this amount.
I remain happy to discuss these issues with your attorney. However, since he cannot be bothered to respond to phone calls or e-mails, I can only assume that he does not, in fact, intend to represent you in this matter. As a result, I would be willing to answer any specific questions that you may have via e-mail, so that we may have a record of the exchange.
Adam M. Platt, Esq.
 I should note that this letter addresses only the substantive defects in the proposed causes of action themselves and ignores the myriad procedural defects and drafting errors. For example, your complaint includes as plaintiffs “WISER E-CIGARETTE, a Colorado Corporation” and “XTAGGED, a Colorado Corporation.” As you must be aware, the Colorado Secretary of State lists no such corporations in its list of businesses licensed to operate within the state. While there is a “Wiser E-Cig, LLC” registered in the name of your mother, Jobita Berriel (registered April 23, 2010), there is not and has never been a business entity of any type registered under the name “Xtagged” within the state of Colorado (nor, I believe, in any other state).
 See, e.g., Caine v. Duke Communications Int’l, 24 Media L. Rptr. (BNA) 1187, 1190 (C.D. Cal. 1995) (“The employment of alternative tort labels cannot be used to evade constitutional limitations for defamation actions.”); Beverly Hills Foodland, Inc. v. United Food & Commercial Workers Union, 39 F.3d 191, 196 (8th Cir. 1994) (same, with respect to claim for tortious interference with business relations); Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 273-74 (7th Cir. 1983) (holding that a plaintiff may not make an “end run” around the rules for defamation claims by characterizing the claim as one for tortious interference); Foretich v. Advance Magazine Publishers, Inc., 765 F. Supp. 1099, 1104-06 (D.D.C. 1991) (holding that plaintiff may not, through “creative pleading,” invoke other, non-libel torts as a vehicle for “end-running other requirements of defamation law”); Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 342-43, 783 P.2d 781, 788-89 (Ariz. 1989) (applying First Amendment limitations to “any tort action relating to free speech”); Blatty v. New York Times, 42 Cal. 3d 1033, 1042-43, 728 P.2d 1177, 1182-83 (Cal. 1986); (same, with regard to tortious interference); Dulgarian v. Stone, 652 N.E.2d 603, 609 (Mass. 1995) (same, with regard to claim under state consumer protection statute); Hoppe v. Hearst Corp., 53 Wash. App. 668, 675-76, 770 P.2d 203, 207-08 (Wash. App. 1989) (same, with regard to claims for intentional and negligent infliction of emotional distress and false light invasion of privacy).
I’d been trying to figure out why Ron Kelsay, Andy’s “documentary film-maker” was so willing to believe everything a convicted felon like Andy Esquivel who sold fake shares in non-existent companies told him instead of law abiding citizens who’s money got taken or who tried to expose the scam. It was confusing to me that I could post all the facts that were about to hang Andy Esquivel on a message board thread with supporting evidence and yet Ron completely ignored those facts and choose to be blind to the evidence that was right in front of his face. I found the answer a while ago and I had resisted posting it out of courtesy, but then quite frankly I grew tired of seeing someone like Ron pretending to be the same caliber of person as the victims of Andy’s frauds.
The reason that Ron Kelsay is so blind to Andy Esquivel’s faults, his lies, and his criminal history is because Ron and Andy are two of a kind.
Let’s start with Ron’s education. Ron learned how to ink tattoos on a “jailhouse rig” when he was 12. Juvenile records are sealed so I have no idea how he got his hands on a jailhouse rig, but I can guess. He then went to the Colorado Institute of Art, but couldn’t afford to finish paying for his education, so they slapped him with a $1,200 judgment which he eventually satisfied in 1995 with the help of his attorney James J, Standley. After that it gets interesting!
January 12, 1990 he was convicted of theft, conspiracy, 1st degree criminal trespass, and cited for having two or more such offenses within a six month time-frame [Case#1990F73].
On February 7, 1990 he was at it again! Theft, conspiracy, 1st degree criminal trespass and again he was cited for having two or more such incidents within a six month period [case#1990cr147]. What was he, on a crime spree trying to pay for college? Why didn’t he just get a job like the rest of us? There were actually ten counts in that case, but I’m going to be summarizing his criminal history for brevity. Unlike Andy, he actually had the good sense to hire an attorney named Seth Jeremy Benezra. Seth convinced him to plead GUILTY in exchange for a reduced sentence just like Andy Esquivel is about to do.
After that second charge, Ron took a few years off from his “criminal mischief” to be a cable repairman for Comcast, which I have nothing but respect for! It was good, honest work and nobody can fault him for those years…but then something went wrong!
On November 12, 2003 Ron was convicted of criminal mischief but released on $1,500 bond [case#2003m3974]! What happened? After that he got a DUI in February 2004 [case#2004t1214], and then in 2005 he was back to his old tricks.
On September 12, 2005 Ron was charged with criminal mischief again, but this time the amounts were much higher and all three counts he faced were felonies [case#2005cr1585]. Ron’s Public Defender, Yasmin Sandra Forouzandeh, got him work release and 18 months probation. I wonder why that light sentence didn’t teach Ron a lesson?
On July 17th, 2006, six months after his wife Shannon was charged with CHILD ABUSE [case#2006m264] and two months after she received her second DUI [case#2006t3130], leading me to believe she was driven to alcoholism and divorced Ron because of his criminal relapse, Ron was charged with the most telling of his criminal offenses and the one Andy was first charged with in 1988…BURGLARY!!! [case#2006cr1040] This time they held Ron on $10,000 bond (like Andy) because the charges were much more serious than before. Burglary of a dwelling, harassment by striking or kicking his victims (who were probably home in bed or watching television when Ron broke in), criminal mischief, criminal trespass, etc.
Who does Ron think he is going online pointing fingers at good, law abiding citizens who’ve worked their entire lives, taken care of their families, and always tried to do the right thing when all he has to show for his life is an ex-wife who’s teeth rotted out from Meth use, a son who sings gangsta rap and who Ron produces videos for that glorify drug use and are filled with naked women, a bunch of tattoos and a con-artist buddy who’s a convicted felon (like him) and is about to go on trial for fraud?
I read Ron’s accusations and ridiculous excuses for Andy Esquivel’s criminal activity and it just makes me sick! Ryion Butcher, Kyle Cluff, Ladd Quayle and Chris Engelbrecht are good people with families and lucrative careers or legitimate businesses…well, maybe not poor little Kyle who’s still in school and trying to find a wife, but he’ll get there. Ron Kelsay has got a lot of nerve spouting his continuous string of senseless accusations and assorted crap online. The victims of Andy’s frauds have the courts on their side, and they have the law. All Ron has are the loaded conjectures and bold-faced lies of a convicted felon who’s been charged with FRAUD and is about to be put on trial for it.