Posted on February 8, 2013 in Andy Esquivel's Scams Andy's Threats
Most of you know that Andy Esquivel is a worthless scumbag who sleeps with under-aged girls and refuses to pay child support for his children, but what you probably didn’t know is that Andy also takes advantage of high school kids to make money! Following is a first-hand account form one of Andy’s former employees who was only in high school when Andy used him for cheap labor at his Xtreme Sushi shop and never paid for his work.
The testimony you are about to read has been forwarded to Davis County prosecutors to help illustrate the lengths to which Andy Esquivel will go to further his various scams and to make a buck. John Steer, Andy’s low-life cousin, is also implicated in this scheme to defraud a young man with little experience in the ways of the world because he stood by and watched Andy extort work form this high school junior in the furtherance of Andy’s schemes.
Below is the brief testimony of Dakota Iverson of Bountiful Utah:
When I was a junior in high school there was a restaurant called Xtreme Sushi in Bountiful Utah. I was attending Bountiful High school and was in need of a job, so one day I wandered into Xtreme Sushi and applied. The person who took my application and interviewed me was a man named Andy Esquivel.
Andy gave me the application and I basically got the job on the spot – quick and simple. After a couple days Andy started ranting to me about “Xtagged”. He said it was a website worth millions and billions of dollars and that it would make us all rich. This was around the same time that Twitter was invented and it’s funny because he would always say that twitter was nothing compared to Xtagged and if they could get so popular and be worth so much money then that means Xtagged is going to be worth way more!
I went on working for Andy at Xtreme Sushi for $6.50 an hour as the time passed and passed without me getting a pay check. I think it was two months before I got my first check , and I do not recall the amount of money I was finally paid. That first amount doesn’t really matter though because after that first two months, I never did see another dollar – nothing in the next four months that I worked for him. Paychecks were not what I would call a ‘usually thing’ at all while working for Andy – in fact they did not really exist. I went on for so long with out receiving money because every day without fail Andy would talk to me about Xtagged and he would say that he was giving me 1,000 shares of stock in the company. He promised that when the site took off, I would be able to sell my stock for “millions of dollars”. This didn’t get rid of my desire and right to be paid for my labor, but I trusted Andy because everything he said seemed to be in my favor. He always seemed to care about my well being (or so I thought). I trusted in Andy because he was such a good liar.
I feel stupid for believing Andy for 6 months with out receiving almost anything. I was a kid in high school so I was very gullible. Andy saw that gullibility in me and he decided to take advantage of it.Though I did not ever complain for about not being paid, I made sure to keep track of every hour that I worked in hopes of being paid for my labor someday. After all, that is what Andy told me to do because he always promised that soon I would receive my check.One day I went to work and when I showed up at the restaurant I realized that the doors were locked and it was dark inside. A lot of thing things were missing from in the restaurant. I am not sure who removed everything, but I’m certain it was Andy. It looked like he just ran away, which I finally learned is exactly what happened. In the end he just packed up and ran away without paying me another dime and with out even saying a word.I’ve calculated that Andy owes me 89.9 hours worth of labor at $6.50 and hour, which totals up to $584.35. John Steer would be able to confirm this, because he was there while I worked all those hours. I don’t ever expect to get paid and I’ve learned my lesson about who to trust and who to avoid. Andy is definitely a person to avoid at all costs. I hope he finally gets what’s coming to him in this trial.
What kind of Christian takes advantage of young kids working their way through high school? What kind of person sits back and watches while a scam artist like Andy Esquivel extorts money from children? The answer is simple – Andy Esquivel is no Christian and John Steer is no human being. Both men are leaches and one day Karma will catch up to both of them for what they’ve done.
I’d like to thank Dakota for his courage in sharing this story. None of us likes to be conned and it’s hard to admit when it happens, but at least we can alert the world and save others from making the same mistakes. Andy Esquivel and John Steer are a collective mistake – period! Wherever they are, they should be reminded of the people they’ve hurt and the trail of lies they’ve left behind. One day soon it will catch up to both of them, and those of us who believe in justice will be there waiting and cheering.
Posted on February 8, 2013 in Andy Esquivel's Scams Andy's Threats Andy's Videos Trial Updates Xtagged
Andres “Andy” Esquivel’s public defender filed a motion with the second district court of Davis County on Wednesday formally requesting to be released from the case. In the filing Mr. Albright described Andy’s actions as “repugnant” and stated that the attorney client relationship had been “irreparably damaged” by Andy’s pretrial activity. This is EXACTLY what we stated would be the reason for Albright’s departure when we first learned about it from the court last week. The trouble with Andy, besides the fact that he’s a pathological lying sociopath, a dead-beat dad, and a convicted felon, is the fact that he doesn’t know when to shut up! This is the SECOND attorney that Andy has driven away by his psychosis and if he is not careful he will end up having to represent himself in this case because no competent attorney will represent him. Albright has nominated conflict attorney Julie George to represent Andy for the duration of the trial.
The memorandum filed with the court on Wednesday states the following:
Utah Rules of Professional Conduct, Rule 1.16 (b) (4) states that where representation has commenced, the lawyer shall withdraw from the representation of a client if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement”.
- Mr. Esquivel has recorded conversations I have had with him. His recordings include conversations taken place at the courthouse, on the telephone, text messages and include conversations defendant had with my investigator Carl Hurst.
- Most, if not all, of these conversations and text messages have been posted on the internet. These conversations have also been sent to news outlets, reporters, business associates of Mr. Esquivel and to the case prosecutor, Nathan Lyon.
- One of Mr. Esquivel’s associates is Allen Brady. On the 16th of January Mr. Brady called me and set up a meeting with Mr. Esquivel, Mr. hurst, and myself. Mr. Esquivel did not show up, but Mr. Brady did.
- Two days after we met with Mr. Brady, Mr. Esquivel posted on the internet under the subject heading “Why was Allen Brady threatened” (a copy of what was posted is attached). Mr. Esquivel states that we threatened Mr. Brady not to testify.
- Later on page 2, Mr. Esquivel talks about a video he has whereby I talk to him about the evidence of the case.
I have found the actions of Mr. Esquivel repugnant and obviously have a fundamental disagreement with him recording attorney client conversations and posting them on the internet and specifically sending them to news outlets, reporters, and the prosecutor in the case. Because of the above actions the attorney-client relationship has been irreparably damaged to the point that counsel can no longer provide effective assistance.
William J. Albright
Mr. Albright then attached a psychotic, rambling email from Andy in which he goes on and on about Allen Brady testifying and about the $100,000 he stole from Melissa Garr. The email states:
Mr. hurst all my witnesses, you know the ones you guys have not called, have spoken with Allen Brady the man that was called to Bountiful 01/17/13 and threatened not to testify & you guys can’t tell Allen to stop recording especially in Bountiful where they attacked us! All Xtagged owners have asked for my attorneys phone number provided in this video for Xtagged owners & media ONLY that’s why the video is unlisted: http://youtu.be/t4S4WDr2PDg
but most Xtagged owners say they are writing letters to judge Connors including Allen Brady. I asked them to wait until I have my meeting with you & Albright over Skype this coming week!
Every time Holje or Albright have presented so called evidence I shot it DOWN! I recorded Brian Davis laugh about $100,000 he had and Melissa Garr supposedly gave me listen to my attorney http://youtu.be/t4S4WDr2PDg
FYI- the new so called evidence you hear public defender talk about in video above was also shot down call Allen Brady asap he has all details. Ryion’s checks prove he scammed Logan Laws look http://youtu.be/-iGbB11Sdt8
[full text of the filed motion can be seen here]
So Andy and his brainless accomplice Allen Brady have done it again. No doubt Andy’s first attorney Michael Holje resigned the case for similar reasons. We’ve seen in emails provided by Andy Esquivel himself that Michael Holje was concerned about evidence that he stole $100,000 from Melissa Garr, and it’s clear that this evidence is damning enough to rattle Andy into driving away another lawyer! Obviously there is some truth to Ms. Garr’s allegations if Andy continues to go completely insane every time the question is raised by his own attorneys.
Why is Allen Brady still so involved in these proceedings anyway? Doesn’t he realize after all this time that he isn’t helping Andy in the least? Everything he’s done to try to help Andy in this case has only made things worse! He began by claiming against all reason that Ryion Butcher and I would be facing eminent jail time in this case (in which we’re not even defendants), bragged that the case was being moved to Colorado for some reason, spent thousands of dollars he didn’t have paying for an attorney who subsequently quit because he realized Andy was guilty, and now has so inflamed tensions between Andy and his public defender that Andy is left without legal representation in a felony fraud case that could carry up to 25 years in prison for Andy if he’s convicted! If ever a brainless monkey walked the Earth in the clothes of a human being it must be Allen Brady…the man has the intellectual capacity of a grape!
To say the least, Tuesday’s pre-trial hearing should be interesting. The court will appoint Andy a new public defender and that attorney must figure out a way to keep her client under wraps until trial. She also needs to put Allen Brady in his place and convince the Judge that Andy Esquivel is mentally competent to stand trial…whew! Talk about having your work cut out for you.
Good luck with that Julie. Personally I think you should file a gag order against Andy and enter a GUILTY plea on his behalf. I don’t know how Andy would pay restitution to his victims, but at least he’d be out of everybody’s hair for a little while.
Posted on February 5, 2013 in Andy Esquivel's Scams Andy's Threats Karma Cause Trial Updates Wiser Technology
Poor little Andy Esquivel just can’t catch a break. Just when it didn’t look like life could get any worse with a pending criminal trial, his public defender quitting his case, another pending hearing for back child support, and a sixth illegitimate child entering the world with a dad who can’t seem to find work, Andy Esquivel gets slammed with ANOTHER judgement demanding payment of $1,575.99 from NAR Inc.
The judgement is being filed in Utah as a foreign judgement from Colorado by NAR Inc. apparently for APEX Alarm equipment and services that Andy purchased and never paid for. Obviously Andy won’t be able to pay the judgement since he’s broke, unemployed, and still pretending to be CEO of a bankrupt group of imaginary technology companies. One wonders how long it will take Andy to realize he’s an adult now and that he needs to have a job in order to live. In this day and age it’s unacceptable to continue living off of your girlfriend and her food-stamps while living at home with your mother. Any real man would by now have picked up the classifieds and found himself legitimate work as a janitor someplace.
The case details can be found here:
The court has granted NAR Inc. permission to charge Andy 8% interest until the judgement is satisfied. My hunch is that when Andy finally gets our of jail and is forced to get a job as a condition of his probation, NAR Inc. will garnish his wages to recover their funds. At minimum wage, who knows how long that is going to take, but at least they’ll eventually get their money.
Posted on February 4, 2013 in Andy's Threats Wiser Technology
Over the weekend, Andy Esquivel posted the following on both his Wiser Technology and Karma Cause scam websites.
(911 info) just in from Rebecca Dunn herself, Daryl Acumen called her CRYING: “Please mom don’t let them put me in prison, please I beg you, I’m sorry”
Rebecca: “I warned you in the end Andrew, Ryion & Ladd would blame the [nigger]”
There are several problems with this post, besides the racism which I will deal with last. First of all, I haven’t spoken to my mother in years. We had a major falling out in 2008 when the severity of her mental condition became fully apparent to me, and the schism only deepened when I realized that she was still chasing con-artists like Andy Esquivel at the risk of her own personal safety. My mother has been remotely diagnosed with Borderline Personality disorder (BPD) and her fixation on con-artists like Andy Esquivel is part of her condition. Since my mother refuses to seek treatment, I’ve chosen to cut-off all contact rather than continue a losing battle trying to convince her to seek help.
I did receive the following conciliatory email from my mother in 2011 when she realized that Andy Esquivel had been a fraud all along. I’ve never posted it out of respect for her effort to make amends, but now I feel it’s probably appropriate.
I basically stopped communicating with Andy last year and then realized that I had to expose him. Andy is stating that he is preparing a documentary based on conversations that he has recorded. He does not realize that FCC forbids the recording of conversations without the user’s prior approval. Over the past 18 months, I have sent many emails that I regret and I am certain that Andy is planning on including those and my goal was to beat him to the punch. I was prepared to send this document out early Wednesday morning; but, he just sent me a nasty email and I have no choice but to send it out now.
Daryl, we used to be so close and we have caused each other so much pain. I doubt seriously if I will ever see you again and I wonder if any of this was worth it. Please know that I love you much and I only wish you happiness. I titled the document ‘The World of Blogs and Xtagged.’ This document contains supporting emails and I’ll send it to you in four emails. I hope that some day you will find it in your heart to forgive me.
Good Luck to you and your family.
I love you.
The email was accompanied by a wealth of information in assorted documents which we have posted on our website here. Aside from this brief communication however, my mother and I remain estranged. I do still have her email address, but I do not have my mother’s phone number and wouldn’t’ call her if I did.
The second problem with this post is the fact that it doesn’t make any sense! I’m not the one facing three felony counts of securities fraud and being sued by the Utah Office of Recovery Services for years of back child support on two of my six illegitimate children (Andy gave up his paternal rights to a third after drugs were discovered in the child’s system). I’m not the one who had to plead guilty to digital harassment charges after spending a year stalking me online. Andy Esquivel doesn’t seem to get this, but he’s the only one facing potential jail time right now, not his victims and most certainly not Daryl Acumen.
The last problem I have with Andy’s post is it’s blatant racism. My mother doesn’t use the “N” word, even when attributing it to the sentiments of third parties. She may be mentally ill, but that part of her personality I’m confident has not changed. For Andy Esquivel to be desperate enough to stoop to blatant racism, even after complaining on his various websites about the racism he claims to have been subjected to by the victims of his crimes and the prosecutors holding him responsible for them, is a clear illustration that he has run out of things to say.
I’m 100% confident that Rebecca Dunn has not resumed contact with Andy Esquivel, even to inform him that she no longer wishes to be contacted by him. I know this because I get updates on her condition from a cousin who stays in contact with her. If Andy Esquivel were in contact with my mother, he would know much more about her circumstances that he professes on his various blogs. The fact that Andy has repeatedly blogged that my mother will be testifying at his criminal trial tells me that he has had no contact with her in quite some time. The fact that he continues to claim contact with her in spite of his obvious ignorance of her circumstances is laughable.
Nice try Andy. I have it on good authority that the public defender who’s about to be assigned to your case is going to insist that you accept a plea deal with the state. Maybe you should spend a little less time pretending that you have a case and a little more time looking for a job so you can afford the deal the state is going to offer you. …oh, and you might want to start paying child support while you’re at it.
Posted on February 1, 2013 in Trial Updates
Another defense attorney has resigned as counsel in the securities fraud trial of con-artist Andy Esquivel. In a filing with Judge Connors on Thursday, prosecutor Nathan Lyon confirmed to the court that William Albright has resigned from the case citing a “recently developed conflict of interest.” No details on the nature of the ‘conflict of interest’ were made available to the court, but a pre-trial hearing has been scheduled for February 12th at 8:45am before judge Connors to assign a new public defender. At that time the court will also review a continuance motion filed by the prosecution due to scheduling conflicts of it’s two expert witnesses in the case.
[Continuance filing and defense resignation]
This makes the second attorney to resign from Andy Esquivel’s defense team in less than nine months. Defense attorney Michael Holje of the firm Brown & Bradshaw resigned the case in May citing similar client issues and demanded that Andy Esquivel cease all communication with his office. Andy subsequently asked to represent himself before pleading ‘indigent’ before the judge and requesting that a public defender be appointed to defend him.
What is Andy doing to keep scaring away his defense attorneys? We’re pretty sure Allen Brady simply ran out of money to continue subsidizing Holje for Andy, but for a court appointed public defender to quit the case, Andy must have done something really, REALLY stupid! We may not know what caused the conflict until the hearing on February 12th, but until then it’ll be fun to speculate on what drove Albright away. My guess is that it was a combination of Andy violating attorney-client privilege by sharing private communications between himself and his attorney with he world, Albright taking exception to Andy’s threats to file erroneous complaints with the Utah Bar against the prosecutor in the case, and Andy’s clearly being not only guilty but non-repentant about the crimes of which he is accused. Under the circumstances, I couldn’t blame any ethical attorney for being unwilling to continue as Andy’s defense counsel.
Andy remains free on a $10,000 bond secured by his mother because he doesn’t have a job. Case updates can as always be found here.
Posted on January 25, 2013 in Andy's Videos Karma Cause Wiser Eyes
While shuffling through old videos, I found one I’d almost forgotten about. It’s Andy’s King Christ video in which he talks about his new religious movement and it’s associated charities.
This video is especially educational because Andy touches on so many of his numerous scams. He briefly touches on his e-cigarette and then brags that 50% of the proceeds are going to his fake Karma Cause charity. He also brags that used e-cigarettes sold through his now defunct Wiser E-Cig company would be refurbished and donated to homeless shelters (because they’re all just dying to get their hands on more e-cigarettes).
Next Andy talks about his fake Wiser Eyes HD sunglasses, which are actually MyVu Solo EV video glasses and are of course not actually HD at all. I think it’s hilarious how Andy thinks a weak photo-paint job on the MyVu solo product image can fool people, but whatever. He goes on to mention that the sunglasses are 1080p, which of course the MyVu’s are not. The irony is that Andy can’t even afford to buy a pair of MyVu’s to show off in this video – he has to rely on images swiped from eBay.
Andy goes on a rant about how he’s going to personally rebuild Solomon’s temple (and Herrod’s temple because he apparently doesn’t know the difference) and allow people to walk through the temple in HD with the Wiser Eyes Sunglasses so the temples will “never be torn down again.” The funny thing about this of course is that the movement is called “King Christ” and one of the main teachings of Christ is that we don’t need to go to a physical temple to worship God because God lives in all of us – even pathological lying sociopaths with felony records like Andy.
Finally Andy rounds out his rant by bragging about the Chimera phone, which of course never materialized, and how it along with Andy’s other fake companies, bogus charities and imaginary technologies is going to change the world. At the top of the video you can see that all these world changing, beginning with the launch of the Wiser Eyes Temple, were supposed to have happened last December 21st. The Karma Cause website also mentions the magical December 21st date and claims to kick off the world change campaign with a million dollar donation to humanity (from a guy who can’t even afford to pay his back child support).
I wish Andy would give us an update on all his fake charities and how many people they’ve saved. Maybe he can preach to us from the witness box at his own fraud trial – I’m sure that will impress the judge and the jury. Hey Andy, if you’re reading this (and I know you are) don’t forget to have your lawyer tell everybody how many lives you could save if they just ignored all the money you stole and let you go free.
Posted on January 23, 2013 in Andy's Videos
Andy Esquivel’s scams never cease to amaze me. Few things are as entertaining as debunking this scumbag’s ridiculous claims and revealing the extent of his psychosis.
The latest example is Andy’s claim that he’s sold the rights to the “Xtagged movie” to film producer Brian Doubleday (Producer of 1999 blockbuster ‘Instinct’, early 1990s hit television series ‘Venturing’, & 2008 documentary ‘Big River Blues’). As evidence of the current production of this eminent documentary, which Andy hints will be bigger than “The Social Network” because he claims to have retained the ‘Facebook lawyers from the film’ to represent him, Andy has been broadcasting links to a 60 second video in which he tells part of his story.
It’s an impressive video…well produced, excellent photography, etc. There’s only one problem – anybody in the Denver area with 15 minutes to burn can buy the same video from Brian Doubleday for $99! It’s actually a terrific deal…here is the text form Brian’s “Greenworks Video” website to illustrate:
The $99 Video Bio!
Video Bios are rapidly taking the place of text bio on sites such as Linkedin, Facebook, and an ever increasing number of other social media sites. With a 60 second video bio, you can easily tell everyone who you are, what you’ve accomplished, and give them a real sense of your personality as well.
Here’s how it works:
Call Brian Doublday at our studio (303-728-9574) or email firstname.lastname@example.org to schedule your bio shoot in our studio. Once you agree about a time to come in, he’ll talk to you about what to say, and ask you to write it out and email it to him.We’ve reserved our studio every weekday from noon until 1PM for shooting these bios. Your script will be loaded into our teleprompter (no memorization is necessary!) you’ll come in and have 15 minutes of studio time to get it done.When you walk out, you’ll have a professionally produced video bio, with your name and title (if you want) on the screen. What could be better (or more affordable at just $99) than that!
Posted on January 18, 2013 in Trial Updates
There was little (really nothing) to report from Andy’s final pre-trial hearing on January 15th. The hearing was short and to the point – no resolution as yet (duh, Andy can’t afford to pay the victims back as would be required by a plea agreement), so trial will proceed on February 27th as planned. Case updates as always are available exclusively right here at Xtagged.co. You can go to one of Andy’s stupid, ranting little blogs, but all you’re going to find there is a lot of nonsense about BYU professors, Bump and death threats against Google. Only Xtagged.co consistently provides you accurate, up-to-date reporting on what has proven to be the most colorful and hilarious fraud case in recent memory. From indictment to conviction, nobody covers this case like we do!
Posted on January 16, 2013 in Andy's Threats Trial Updates
Andy is now posting evidence of his crimes in the hopes that this will somehow convince the world that he’s innocent. Here’s the text of Andy’s latest post – see if you can make any sense of it:
We paid Ryion $2,500 through Logan Laws 09/14/2009 look below [at picture of check to the left]… after we gave Logan $2,500 Ryion was supposed to remove negative blogs he never did so we never paid remainder $2,500!
By reading the text above you would think that the check pictured was made out to Ryion Butcher, right? In fact close inspection reveals that the check pictured is the one Ryion Butcher wrote to Andy Esquivel in exchange for 1% of his Xtagged scam. The text in Andy’s post has absolutely nothing to do with the check in the photo. Note: accepting a ‘check’ in exchange for a ‘share of ownership’ in a company (real or fictitious) is BY DEFINITION a “securities transaction,” yet Andy Esquivel is going to try to make the case at trial that he never sold any securities.
In other words, here’s Andy trying to convince himself that the pictured check proves he tried to pay Ryion Butcher back, when in fact all it does is provide further evidence of the fact that Andy committed securities fraud as charged. It’s amazing how the minds of crazy people work. Looped logic, delusions of grandeur, fantasies of persecution – it’s no wonder poor Andy can’t get a job.
Posted on January 8, 2013 in Trial Updates
Next week will be a busy one for Andres “Andy” Esquivel Jr. (DOB 9/8/1970). Andy has two court hearings to contend with.
The first on January 11th at 9:01am with Judge Marianne Marshall Tims at the Colorado District Court room 2f relates to the fact that Andy has made no effort to repay the nearly $20,000 in back child support he owes for two of his soon to be six children (all conceived and born out of wedlock). Andy will presumably attempt to present evidence that he once paid his ex $5,000 (which he never reported to ORS) as reason to reduce the amount he owes from $20k to the still substantial sum of $15k. Since Andy has no means to pay either the $15k or the $20k, the question is of course moot. He will likely be asked whether he has attempted to find work in order to meet his paternal obligations, to which he will have to respond negatively. It is likely that the court will mandate that Andy take steps to become a contributing member of society by seeking gainful employment or face sanctions.
The second hearing on January 15th at 8:45am in courtroom 5 with Judge David Connors will be the final pre-trial hearing for felony securities fraud case #111701135. Unless Andy faces the music and agrees to a plea bargain in which he agrees to pay his victims back their investments with interest, this hearing will simply be a formality in which the defense and prosecution advise the court as to whom they intent to call as witnesses at the trial on February 27th. Since Andy’s attorney has no witnesses to call, the hearing should be a short one. Andy continues to post online that he intends to call a host of witnesses to his defense, but since Andy has an attorney now and his attorney has yet to notify anybody besides Andy that they need to prepare to testify, the odds of that are slim.
As usual, we’ll post details about both hearings as soon as the information is made available to us by the courts.
Posted on January 4, 2013 in Andy's Videos
Here’s the latest video link from Andy Esquivel. In this video Andy shows off a single legitimate endorsement on the fake Linked-In profile he created in Steve’s name and then brags that Steve Klemark (who probably isn’t even speaking to Andy anymore considering Andy is on trial for fraud and the Denver PD has strict rules about employees associating with criminals) is the next Steve Jobs. Andy then claims that this blog is responsible for Steve Klemark’s wife’s attempted suicide, which is an interesting stretch, and hints at the end of his rant that case #111701135 may not even go to trial (presumably because Andy will finally plead “guilty” to all charges). Trial is currently set for late February.
This is a quickie sent to me by my attorney Adam Platt and I thought it would be fun to share.
Posted on December 17, 2012 in Andy Esquivel's Scams Andy's Threats
Pathological lying sociopath and convicted felon Andy Esquivel continues to show the depths of his depravity with new and stunningly inappropriate emails to his victims. The following email (presented un-edited) was sent by Andy to one of his fraud victims via LinkedIn. The email claims that he, Steve Klemark (of the Denver Police Department), and Rebecca Dunn (former pretended CEO of Andy’s various scams) invented iPhone apps and other technologies under their fake shell company Wiser technology that could have prevented the Connecticut school shootings.
Claims like this one are not new. A few months back Andy likewise claimed to have invented technologies that could have prevented the Aurora Colorado theater shootings, which we called him out for as well. The depths of this scumbags depravity appear to know no bounds as he is now attempting to use the deaths of a score of children to bolster his defense against the securities fraud charges he now faces and to influence the witnesses against him.
The email follows:
———- Forwarded message ———-
From: Andres Esquivel via LinkedIn <email@example.com>
Date: Sun, Dec 16, 2012 at 7:29 PM
Subject: Shootings- Steve klemark could have helped!!!
To: Chris Engelbrecht
Cc: Allen Brady <firstname.lastname@example.org>, John Steer <email@example.com>, Marali Madrid <firstname.lastname@example.org>, Arelis Diaz <email@example.com>, Rick Barber <firstname.lastname@example.org>, Eduardo Blancas <email@example.com>, Cynthia Bagué <firstname.lastname@example.org>, Don Bain <email@example.com>, Chue Berriel <ChueBerriel@yahoo.com>, Cheryl Lucero <Luceroc01@aol.com>
Andres Esquivel has sent you a message.
Subject: Shootings- Steve klemark could have helped!!!
Something like this OK Steve Klemark and Rebecca Dunn 2010 invented an app for an iphone that would tell you the difference between the sound of a bullet and the sound of a fire cracker but Steve went bigger a smoke alarm type device equipped with bluetooth so when bullet went off in theater not only would an alarm system sound in there but bluetooth emergency frequency would domino the alert every 30 feet showing people on Iphones where the gun went off but Steve went bigger designing bullets that make a distinct sound just by changing the shape of a bullet I don’t know what to do Steve Klemark is like Steve Jobs reborn Steve just vowed to bring down Daryl & Ryion and is consumed with that battle when he could be helping kids be safe I am at my wits end so I figured the media would know if this is important right because trust me I only told you what I can remember but it sounds important to me but maybe not. Elijah of Wisertechnology.com
Posted on December 6, 2012 in Andy's Threats
Here’s an interesting footnote to the whole Xtagged scam story: Andy is now bragging about embezzling funds from his own fake company!
Recently Andy Esquivel has taken to threatening his ex girlfriend (mother of two of his five kids – Andy is apparently not big on marriage) with fraud charges for, as he describes it, not reporting a $5,000 payment he made to her for ‘child support.’ Andy is using this distracting argument to deflect attention away form the fact that he currently owes nearly $20,000 in back child support to ORS and has no means to pay it.
The truth is very interesting. As it turns out, Andy is talking about money he received from Ryion Butcher to purchase 1% of a fake company called “Xtagged.” Ryion gave Andy the $5,000 check for his fictional 1% after signing a fraudulent contract given to him by Andy (this, by the way, is the dictionary definition of a “securities” transaction). Andy took the cashiers check and attempted to sign it over to his ex girlfriend, but she smelled fraud someplace in the mix and declined to accept the third party check from Ryion. Andy then asked his ex to meet him at a Cypress Credit Union in West Jordan where he cashed Ryion’s check and exchanged it for another cashiers check made out in her name. Andy now claims that this $5,000 check should have been reported to ORS as ‘child support’ and the fact that it wasn’t reflects some sort of deception on his ex-girlfriend’s part.
Unfortunately for Andy, the laws surrounding this series of transactions are very clear. First of all, it is Andy’s responsibility to communicate with ORS and to notify them of any child support payments he made to his ex. Without such paternal reporting, any monies paid to Andy’s ex are considered “gifts.” The fact that Andy has been hiding from ORS for years means that he gave up the ability to self report payments while he was out of contact. The only reason ORS ever even found Andy was because the administrators of this website provided them with his address, phone number, and a photo for spot identification. It doesn’t pay to run from your parental responsibilities – especially if you’re going to be loud about it.
Secondly, the fact that Andy diverted funds specifically entrusted to him by an ‘investor’ in a company (albeit a fake company) he claimed to be principle of is legally considered embezzlement and is further evidence of fraud! I wouldn’t be surprised if the prosecution calls Andy’s ex to testify in February for the purpose of describing the depths of Andy’s criminal activity in this case. In the legitimate business world, the idea of taking money from investors and giving it to your ex-girlfriend is unthinkable! Fortunately for Andy, he’s already on trial for felony securities fraud so the revelation can’t really make things much worse than they already are.
Finally, even if the judge in Andy’s January child support hearing decides to give him credit for the $5,000 he stole from Ryion Butcher to give to his ex-girlfriend against his existing liabilities, he still owes over $15,000 in back child support. Since Andy doesn’t have a job, is completely broke, and is on trial for a felony that will make it difficult for him to find legitimate employment in the future even if he manages to stay out of jail, the odds of him being able to satisfy this obligation are remote. It must suck to be a destitute con artist with no means to support your numerous, illegitimate children.
Maybe Andy will come to his senses soon, cop a plea to stay out of prison, and will find legitimate work somewhere. I know Walmart is hiring seasonal warehouse help this time of year. With a little luck, they’ll overlook Andy’s criminal past and give him a second chance at life.
Posted on November 28, 2012 in Trial Updates
A new trial date has been set in Andy Esquivel’s securities fraud case. A final pre-trial hearing will occur on January 15th followed by a jury trial on February 27th and 28th where Andy will be represented by a public defender (because he cannot afford to pay for an attorney himself). Full updates can be viewed in the case file here.
On the 28th of February we expect the court to find that Andres Esquivel did in fact sell “securities” to three men in Davis County Utah and therefore did in fact violate the law. Andy continues to claim that he did NOT sell securities to these three men and that he is therefore innocent of securities fraud. I’m curious to find out how someone becomes an “owner” of a business after being sold “shares” in the company without having participated in a “securities” transaction. This should be very enlightening.
Posted on November 26, 2012 in Andy Esquivel's Scams Trial Updates Xtagged
Andres “Andy” Esquivel likes to pretend that the people who have worked to bring him to justice will one day face some sort of legal retribution. His favorite claim is that once he’s found innocent of securities fraud, “the SEC” has promised to begin an investigation of the people who worked to bring criminal charges against him in the first place. The story goes that Andy met with an SEC judge after he was formally charged with fraud in Davis County and that the judge promised that as soon as the criminal case was over he would investigate the conspiracy to convict Andy. Andy sounds as if he’s really excited about these new charges, as seen in the following post:
“Wait until a real investigation happens and don’t worry a real one is coming the SEC Judge told Allen Brady Aug, 02, 2011 he would start one as soon as Davis county case is over he told Allen that…” – Andy Esquivel
As we have explained on this blog numerous times, the Utah Department of Securities officers that Andy met with indicated to him that HE will be subject to further administrative action by their agency once his criminal case concludes, not his victims. It is unknown what sorts of sanctions or penalties Andy will be subject to once the criminal case ends, but what will not be happening is some investigation of Andy’s victims or the administrators of this blog resulting in charges against us. The ‘investigation’ Andy refers to has already occurred and resulted in the criminal charges he now faces. What’s left is for the Utah Department of Securities to take their own disciplinary action outside of the criminal charges now pending.
Here are the details of the Utah Department of Securities case against Andy Esquivel and Xtagged.
Andy will no doubt continue to brag that he talked to a judge at the SEC (the Judge being Steven Eklund and the agency actually being the Utah Department of Securities, not the SEC) and that those discussions will result in another investigation that will exonerate him and implicate his victims, but this is a complete falsehood. The facts of the case are simple and are here documented for the entire world to review.
Why Andy continues to deflect blame for his criminal activity away from himself and towards the people he scammed is beyond me. A normal person would admit to their crimes, take the punishment and move on. Pathological lying sociopaths apparently can’t do that.
Posted on November 1, 2012 in Andy's Threats Xtagged
This is typical Andy: desperate and clueless!
In his latest attempt to discredit the felony fraud charges which he is currently awaiting trial for, Andy Esquivel has resorted to identity theft. Maybe Identity Theft is too strong a term since what Andy is doing is technically not “illegal”, only against the terms of service of LinkedIn, but I still think it’s interesting that Andy continues to use deception to plead the case that he is not a fraud.
This week in an effort to prove that he did not in fact con his aunt out of $60,000 by encouraging her to invest in a scam website called “Xtagged,” Andy posted a fake LinkedIn profile which he claims is his aunts. The profile proclaims in typical Andy fashion that she was not a victim but an owner of Xtagged and that she will be testifying in court.
There are numerous clues that this profile is fake and that the account was created by Andy to cover for his criminal activity. Anyone familiar with the tone and language of Andy’s numerous online activities can recognize him at a glance:
We obviously have independent confirmation that this profile does not in fact belong to Andy Esquivel’s Aunt (as if we needed it) and I’m sure the administrators t LinkedIn will be getting a complaint soon and will take it down.
Andy did the same thing with Rebecca Dunn: posting a fake profile of her and later pretending that the profile was created by the owners of this blog. I suspect that many of the other profiles that Andy promotes are also fake and created so that he can sock-puppet various people. It’s a common tactic of sociopaths and further evidence that Andy needs medication or detoxification or both.
It is amazing to me that someone who’s been charged with fraud continues to use fraud to proclaim their innocence. You would think that Andy would wake up at some point and realize that he’s not making the situation any worse by continuing to prove himself to be a pathological lying sociopath. You know what they say: when you find yourself in a hole, stop digging! Well Andy’s in a hole…
Posted on October 12, 2012 in Trial Updates
Andres “Andy” Esquivel’s securities fraud jury trial, which was previously scheduled to proceed on October 24th, has been cancelled and another pre-trial hearing has been set for November 13th. This will give Andy’s public defender time to prepare a defense if the case does go to trial (Andy’s public defender was only recently assigned) or to negotiate a plea bargain in the event that Andy decides to stop fighting the charges against him. We think a plea bargain is the likeliest outcome of the November 13th proceeding, especially since Andy is so clearly guilty of fraud and no attorney in his right mind would go into trial with evidence as damning as what the prosecution has against Andy Esquivel.
The updated minutes were not available as of this posting, but we will have the links updated with the latest file once it is available.
Posted on October 9, 2012 in Uncategorized
According to the Utah Office of Recovery Services, Andres ‘Chicho’ Esquivel, the convicted felon who is the author of the long-con that is the subject of this blog, now owes $19,540 in back child support for two of his children here in Utah. The amount has increased because of course Andy isn’t working and hasn’t paid a cent since officials first caught up with him in Denver earlier this year. The amount doesn’t rise very quickly because Andy is being assessed at minimum wage in recognition of the fact that he hasn’t held a legitimate job in over a decade and therefore has no marketable skills aside from being a con artist.
Andy’s liabilities are mounting. Here’s a breakdown of the money Andy owes to various scam victims, exes and family according to testimony, public records, and files obtained by this website:
All told, Andy Esquivel’s current liabilities are between $185,000 (confirmed) and $285,000 (unconfirmed) total! Since Andy has no income and no assets, that is not a good place to be. I am personally a little curious where all the money went, but I guess it really doesn’t matter.
I wonder what it feels like to be a broke, unemployed, deadbeat-dad who’s awaiting trial for felony securities fraud? …must suck.
Posted on October 1, 2012 in Andy Esquivel's Scams Andy's Threats Xtagged
We all know that Andy Esquivel is a pretty sleazy character with absolutely no sense of Christian morality and void of conscience, but even I was surprised to hear just how low this scumbag was willing to sink in order to make a fast buck. Information has been trickling in over the past several months and we’ve been sending it to the Davis County prosecutor rather than posting it here online, but it’s been long enough now and we have enough detail that I think it’s time we exposed a little more of Andy’s depravity to the world.
We have it on very good authority that Andres “Chicho” Esquivel conned his own family out of tens of thousands of dollars through the online scam we all know as “Xtagged.” We know Andy has little regard for family because he has failed to pay any back child support on his two kids here in Utah (he owes $18,000 in back child support currently) and gave up his paternal rights to a third when authorities discovered that he was such a heavy drug user that he couldn’t care for the child himself, but this is a new low that even I didn’t expect.
According to our information, Andy conned a total of just over $80,000 from his own family. He stole $10,000 each from two cousins in Colorado, and another $60,000 from an aunt in California. Andy’s cousins have already cornered him about the scams both in person and on Facebook. Reportedly Andy’s family discovered the depth of his illegal activity when they did a Google search and found this website (according to Andy’s own Diigo blog, we’re now ranked #1 for the keyword “xtagged” on Google…who knew). Andy then sent his mother out to lobby the family on his behalf begging forgiveness for stealing their money, but since she’s a serial con-artist with a criminal record too, nobody is buying it. In some cases Andy and his mom have resorted to threats to convince the family that Andy is legitimate, but that hasn’t worked either.
To show how pathetic Andy is, in one case he even went so far as to encourage one of his cousins to sell his bullet-bike in order to pay for the “shares” in the scam. He encouraged his cousin to place an ad for the bike in a local newspaper and helped broker the sale so that he could get his greasy hands on the money faster. Lord only knows what Andy did with all that cash, but my guess is part of it went up his nose.
It’s heartbreaking to hear that someone as lecherous as Andy Esquivel is willing to con his own family. Maybe someday he’ll come to terms with what he’s done and will be able face them again. Until then, family reunions are going to be tense for Chicho. Maybe it’s time he considers getting a job to pay everybody back.
Posted on October 1, 2012 in Uncategorized
I was talking to a member of Andy’s family today and for some reason I thought of this video. I’m not sure why, but this song makes me think of Andy. It’s been going through my head all morning long so I thought I would share. Enjoy!
Posted on September 30, 2012 in Uncategorized
Andy Esquivel just doesn’t know when to shut up! Here is a guy who’s literally about to go on trial in just a few more weeks for felony securities fraud and he’s still posting brainless garbage all over that supports the case against him. Every month or so for the last several years Andy has claimed “this is my last post, email, video, etc. before court.” Back then he usually meant some mythical civil lawsuit he pretended he’d already filed someplace, but now of course he really is facing an eminent court date and he still makes the same claim. A few weeks ago Andy pretended to “sign off” of his Diigo account until court, when in reality he just created a shadow account in the name of Allen Brady. Now he’s posted again on his own Xtagged Diigo account with this apparent apology for not being able to stay offline while his public defender reviews his case:
Sorry I know I signed off but you all had to see this screenshot! Now I will sign off until trial 10/24/2012!
The bottom line is, Andy will never stop posting about his various criminal activities. I expect that in the next week or so Andy will plea guilty to the charges against him, and then will go on a posting spree claiming that he was forced into the plea by his public defender who somehow corrupted by the evil corporate forces that want to steal his now defunct Xtagged portal from him.
It’s endless fun to read Andy’s rants so I’m not complaining. Frankly the more Andy posts, the more he discredits himself. I’m curious to see how much of Andy’s online garbage actually makes it into the trial (provided Andy public defender isn’t able to convince him to plead guilty first). The more the better! It should make for a hilarious transcript.
Almost as hilarious is the endless string of people Andy continues to claim are going to be making special appearances at his fraud trial. It’s funny that his lawyer is still reviewing the case, yet Andy is bragging that everyone and his mother is going to be called to testify – a decision his defense attorney won’t make until (duh) after he’s finished reviewing the case. We’re still waiting to see all the “media” who are supposed to be covering this case make an appearance. So far not a single reporter has shown up to cover it, much less the movie directors who are supposed to be basing a Hollywood thriller on the whole affair.
Posted on September 24, 2012 in Andy Esquivel's Scams Xooplay
On Friday, September 21st, I like many other technology enthusiasts waited excitedly in my office with the UPS tracking website open for the delivery of my pre-ordered iPhone 5. It arrived just after 3pm and I wasted no time in setting it up and installing all the apps I’d already become accustomed to on my iPad 3. As I sat at my desk and enjoyed Apple’s latest phenomenon, a silly but amusing idea came to me. “I wonder,” I thought, ” if there really is a ‘Xooplay Bumps in the Night’ sex app as pathalogical lying sociopath and convicted felon Andy Esquivel continues to claim.”
We are all by now quite familiar with Xooplay, as Andy repeatedly reminds us that it’s the next big thing, that it has numerous investors, and that the world is singing the app’s praises. We’ve even been treated to two separate (although very cheesy) demonstrations of the app with crude graphics that look like they were drawn in crayon by a six year old child. [Video #1, Video #2]
So, thinking that just this once some portion of the hype might turn out to be true, I hit the search box in the app store on my new iPhone 5 and typed in “Xooplay.” To my shock and surprise, there was nothing available! I then did a separate search for “Bumps in the night” and discovered a cute little Halloween app, but nothing by Xooplay, or Wiser Technology, or any other company that Andy has claimed to represent. Finally in desperation, I typed in Xtagged and again no dice!
Note: I did not try the same thing on Android because Andy currently claims to be suing Google and has started a “Die Google Die!” campaign to further his anti-Google cause. I figured Andy wouldn’t support Google by creating apps on a platform he despises.
Since I know a little bit about the technology indistry, I decided to take a little initiative and contacted Apple’s iOS developer support team – the folks who are responsible for helping developers create new software for iOS and who ensure that the content meets to Apple’s high standards. The iOS folks were cool, but when I explained what I was looking for and described Andy’s Xooplay app to them in detail, they made it very clear to me that (1) neither Xooplay, Wiser Technology, Andy Esquivel, Steve Klemark, Shar Jenkins nor anyone else I could name who is even remotely associated with Andy’s various online scams has ever applied for an Apple developer’s license, and that (2) Apple would never approve such an app because it would violate Apple’s well publicized ban on sexual content in the app store. In other words Andy is, as usual, completely full of crap.
What makes this psychopath continue to create fake products with goofy names as fronts for imaginary companies that continue to rip off investors? Why does Andy bother? Why doesn’t he just get a real job and stop mooching off of morons like Allen Brady and Shar Jenkins?
We may never know what motivates sociopaths like Andy Esquivel to waste so much energy trying to convince the world that they’re productive instead of actually being productive, but at least we can enjoy watching him answer for his crimes on or before October 24th. My guess is Andy will plead guilty to the felony securities fraud charges pending against him by mid October and this will all be over.
Posted on September 13, 2012 in Wiser E-Cigarettes
Many moons ago, Andy Esquivel, Steve Klemark, and Alan Brady claimed to have staged an e-cigarette launch event at a casino in Colorado. They made a lot of noise about filming an infomercial at the casino and even created a fictional character called Gary TheBus (Gary the Bus Driver – get it?) who “blogged” his entire experience at the event, which included a laser beam demonstration. The ‘Gary TheBus blog’ was one of the clearest examples of Andy Esquivel’s psychosis ever posted online and also illustrated how stupid Steve Klemark and others were in continuing to follow a person whom they knew to be crazy! Unfortunately, Andy deleted the blog several months ago to avoid it’s use in the courtroom as evidence of his mental incapacity.
I have searched the web for cached versions of this blog, but for the life of me I can’t find it. It’s one of the few examples of Andy’s craziness that I did not bother to save offline. I’m therefore sending out the call from this moment for anybody who has a saved copy of Andy’s ‘Gary TheBus blog’ to come forward and share it with me. The super-secret federal agency that is funding this website solely to foil Andy’s efforts to save the world has authorized me to offer a $50 reward to anybody who can furnish an authentic transcript of that blog for us to re-post online.
Update: we’ve taken over http://garythebus.blogspot.com and have turned it into a mirror of this blog website. If we can’t have the gruesomely incriminating original text, at least we can use the domain to further our cause of exposing Andy’s crimes to all who will listen.
Posted on September 5, 2012 in Trial Updates
The next pre-trial hearing has been set for October 2nd at 9am as per Andy’s public defender. The postponement was requested to give the PD more time to prepare. As always, updates can be found here [PDF].
As part of his own preparations for trial, Andy has stopped posting under his usual “Xtagged” Diigo account and has switched to a less conspicuous “AllenBrady” account instead. It’s still Andy, as any casual observer who’s used to Andy’s rantings can clearly see, but he has at least decided that posting under his own name as he awaits trial for securities fraud is a bad idea. The suggestion must have comes from Andy’s attorney because I don’t think he is smart enough to have come to such a conclusion in isolation.
Posted on August 16, 2012 in Trial Updates Xtagged
Poor little Andy Esquivel appeared for his pre-trial conference on Tuesday morning and finally admitted that he’s too broke to pay an attorney and that he isn’t capable of representing himself.
In the latest case update (obtained by Xtagged.co from the court and uploaded here) the court found Andy Esquivel to be “indigent” (adjective: [in-di-juhnt] – lacking food, clothing, and other necessities of life because of poverty; needy; poor; impoverished) and incapable of paying for his own counsel. The court therefore appointed Andy a public defender to help represent him at the upcoming trial. Another pre-trial conference was scheduled for August 28th with the new state funded (free) lawyer.
Below are the minutes from the pre-trial conference for review:
The parties are unable to reach a resolution.
In other words, Andy, being broke and unemployed, can’t afford to accept a plea deal because he’d have to pay the victims back with money he doesn’t have and can’t scam from his uncles and aunts, who are now onto his criminal activity – thanks in no small part to this website.
Defendant requests to proceed with the trial and will represent
Mr. Lyon indicates he had advised the defendant the Right to
Counsel and asks the Court to recite the defendant’s rights to him.
The Court advises the defendant of his Right to Counsel.
Defendant acknowledges his rights and waives his Right to Counsel.
Defendant requests to proceed with the trial.
Based on the record, the jury trial scheduled for October 24, 25,
and 26, 2012 at 8:30 a.m. will go forward.
TIME: 1:15 PM
This matter is recalled on the court’s calendar.
Andy is adamant that he wants to go forward with the trial and represent himself. Nathan has tried to explain that he’s facing serious charges and should really take the public defender, but Andy refuses for two reasons:
Mr. Arrington indicates that the defendant has changed his mind
and would like to be represented by counsel.
Key phrase in this notation: “defendant has changed his mind.” That represents a recurring pattern for Andy. Once upon a time Andy had investors, sold Xtagged for millions of dollars, launched an e-cigarette at a casino on an infomercial in front of a studio audience, was suing various people using teams of lawyers from his offices in Los Angeles and Las Vegas, had sold out his entire stock of an alcoholic energy drink, etc… All that changed at some point because Andy Esquivel “changed his mind.”
Defendant is indigent
and requests a public defender to represent him.
In other words, Andy is BROKE!!! He doesn’t have a job and lives with his mother. Poor guy. If you have any questions about this assertion, just watch the last video Andy published where morons-in-common Allen Brady and Ron Kelsay admit that they had to bail Andy out of jail and where Andy brags that he will not be paying them back because it’s against his principles.
requests the Court to appoint Mr.
Albright to represent the defendant.
State has no objections.
Under the circumstances, the Court grants the request and appoints
Mr. Albright as public defender. Mr. Arrington will notify Mr.
Andy’s NEW, new attorney is William Albright.
A pretrial conference is set for 8/28/2012 at 8:30 a.m. The Court
will leave the jury trial dates in place until Mr. Albright has had
a chance to review the case.
Andy’s new attorney is going to try to convince Andy to plead guilty to avoid spending time in jail, since the evidence is overwhelmingly stacked against him. A deal isn’t likely however because Andy can’t afford to pay the Utah victims back and this would doubtless be a condition of any plea deal his attorney negotiates. It would also of course require Andy to admit to the world that he is a fraud.
Posted on July 26, 2012 in Andy Esquivel's Scams
I think in the dictionary under “delusions of grandeur’ there’s a picture of Andy Esquivel.
Here we have a pathological lying sociopath who is broke, unemployed, who lives with his mom, who doesn’t own a car, who has six kids by three different women, who gave up his parental rights to one child because he couldn’t afford to take care of him and owes over $18,000 in back child support on two, who has a felony criminal record, is on trial for felony securities fraud, and he’s pretending that somebody wants to make a ‘movie’ about his life?
Andy now claims that Carlos Mencia (whoever that is) has been cast to play him in the upcoming Xtagged movie and that somebody named Brian Doubleday has agreed to direct. You have to either be insanely stupid or stoned out of your mind to still be taking Andy Esquivel very seriously at this stage. Who wants to watch a movie about a deadbeat dad who conned a bunch of people out of their money and then got convicted of securities fraud? Even his own family thinks hes a loser. I’ll post more information about the “Xtagged Movie” as Andy makes it available. Maybe Andy is using the movie claims as the foundation for a last minute insanity plea.
Posted on July 25, 2012 in Andy Esquivel's Scams Andy's Threats
In a display of brazen stupidity that is shocking even to those of us who have become used to his incredible imagination, Andy Esquivel claims to have invented technology that could have prevented the Colorado theater massacre and thus could have saved lives (…if only he weren’t on trial for securities fraud).
In his latest post, Andy claims that he, Steve Klemark (a low level IT clerk at the Denver PD) and Rebecca Dunn ( a part time substitute teacher in North Carolina) invented a technology in 2010 which could have prevented the shootings and “saved lives” in Colorado. He asserts that this technology was offered to the “the people of Columbine” but that the victims of hsi fraudulent activity in Utah somehow foiled the technology transfer. He even asserts incredibly that the efforts of his fraud victims to enlist the help of the Utah justice system reflects some kind of “negligence” on their part. The actual quote as posted on Wiser technology’s homepage follows with colors and formatting intact.
“We were to post update 07-19 weekend on the 1 year anniversary of the fake security charges filed in Utah! Do to the Colorado theater massacre we had to postpone it because of the anger at Wiser Technology against Daryl Acumen, Ryion Butcher & all co-conspirators since 2009. Please let me briefly explain Wiser team, Steve Klemark, Rebecca Dunn & I in 2010 had invented new technology that we were to donate to the people of Columbine high school and this technology would have saved lives if it were not for the extreme negligence of Daryl Acumen & co-conspirators smear/slander campaign…”
If you ignore the horrible spelling and even worse grammar, basically what Andy is trying to do is pretend that the Colorado theater shooting had something to do with his recent silence regarding the securities fraud case against him. That silence is of course really due to the fact that Andy has been trying desperately to convince his own family not to press criminal charges of their own against him for the money he conned from several of them. It is typical of Andy to cling onto a tragedy of any kind and to try to use the emotional nature of the event to his own advantage, but this latest episode is absolutely DISGUSTING!!!
Posted on July 23, 2012 in Trial Updates
The official pre-trial hearing transcript is now available for review here [PDF]. For your convenience, the full text of the March 21st hearing is also available below:
IN THE SECOND JUDICIAL DISTRICT COURT-FARMINGTON
OF DAVIS COUNTY, STATE OF UTAH
STATE OF UTAH,
) Case No. 111701135 FS
Remanded Preliminary Hearing
Electronically Recorded on
March 21, 2012
BEFORE: THE HONORABLE MICHAEL G. ALLPHIN
Second District Court Judge
For the State:
For the Defendant:
Transcribed by: Wendy Haws, CCT
(Certifier’s identity unknown) Signed by Administrative Office of the Courts Time: 2012.07.21 17:37:29 -06’00’ Reason: Document: Filed with the Utah State Courts Location: Salt Lake City, Utah
1771 South California Avenue
Provo, Utah 84606
Telephone: (801) 377-2927
Nathan D. Lyon
DAVIS COUNTY ATTORNEY’S OFFICE
800 West State Street
P.O. Box 618
Farmington, Utah 84025
Michael T. Holje
BROWN, BRADSHAW & MOFFAT
10 West Broadway
Salt Lake City, Utah 84101
WITNESS: KYLE CLUFF PAGE
DIRECT EXAMINATION BY: MR. LYON 5
CROSS EXAMINATION BY: MR. HOLJE 17
REDIRECT EXAMINATION BY: MR. LYON 35
WITNESS: CHRISTOPHER PAUL ENGELBRECHT
DIRECT EXAMINATION BY: MR. LYON 38
CROSS EXAMINATION BY: MR. HOLJE 46
WITNESS: RYION BUTCHER
DIRECT EXAMINATION BY: MR. LYON 55
CROSS EXAMINATION BY: MR. HOLJE 64
WITNESS: ADAM SWEET
DIRECT EXAMINATION BY: MR. LYON 78
CROSS EXAMINATION BY: MR. HOLJE 82
WITNESS: THOMAS BRADY
DIRECT EXAMINATION BY: MR. LYON 86
CROSS EXAMINATION BY: MR. HOLJE 102
NUMBER DESCRIPTION PAGE
Two Checks to X-Tagged
Copy of Contract
Convertible Promissory Note
Stock Certificates Plus Other Documents
(Electronically recorded on March 21, 2012)
COURT CLERK: No. 24, State of Utah vs. Andres Esquivel
case No. 111701135, set for remanded preliminary hearing.
THE COURT: Counsel, are you ready?
MR. LYON: Yes, your Honor.
MR. HOLJE: Yes, your Honor.
THE COURT: Call your witness.
MR. HOLJE: Your Honor, before we get started, the
State would like to invoke the exclusionary rule.
THE COURT: Counsel on either side, if you have
witnesses other than the officer that is going to assist
Counsel, any potential witnesses, we’d ask them to step aside,
please not talk about the case amongst themselves either before
or after their testimony.
MR. LYON: Your Honor, I do –-I have –
THE COURT: You all know who you’ve got. So if you
would just direct them, I’d appreciate it.
MR. LYON: Just for the record, I’ve got three victims
that will be present, my lead investigator and then our expert,
that I think are entitled to stay under the rule.
MR. HOLJE: Your Honor, with –-I don’t have any
witnesses to call today. For the Court’s information –Justin,
if you want to stand up –-your Honor, if I could
introduce Justin Pratt. He’s a new member of the bar. He’s
my mentee under the Bar’s new lawyer mentoring program –
THE COURT: Uh-huh.
MR. HOLJE: –-and he’s required to observe, so –
THE COURT: You can have him come up and sit behind
you there if you’d like.
MR. HOLJE: That would be great. Thank you, your
Honor. Other than that, Steve Burton is a member of the Bar.
He works with Justin Pratt. I don’t have any –
THE COURT: Okay.
MR. HOLJE: –-issue with him being here either.
THE COURT: Let’s go ahead, then, Mr. Lyon.
MR. LYON: Okay. Your Honor, just as a very brief
opening statement, just to lay a little foundation for your
THE COURT: Go ahead.
MR. LYON: –-this is a securities fraud case, and
we’re going to be hearing from three of the individuals who
invested in the company which the defendant (inaudible), which
was called “X-Tag.” We also have the Investigator Sweet, who
performed some of the investigation.
We also have Tom Brady, who is our expert, who I think
will be able to shed a little bit of light for the Court, I’m
hoping, as to the securities, and why this falls within the
parameters of the security, given that this is not what we
generally see in our normal practice; but I think we’ll proceed
with that, your Honor.
THE COURT: Okay.
MR. LYON: State calls Kyle Cluff.
THE COURT: Sir, if you’d just –
MR. LYON: Stop right there. Stop right there.
COURT CLERK: You do solemnly swear that the testimony
you are about to give in the case now before the Court will be
the truth, the whole truth and nothing but the truth, so help
THE WITNESS: Yes.
THE COURT: Thank you. Now you can please have a seat
at the witness stand. Go ahead.
having been first duly sworn,
testified as follows:
BY MR. LYON:
Q. Mr. Cluff, could you please state your name, spelling
your last name for the record.
A. Kyle Cluff, C-l-u-f-f.
Q. Mr. Cluff, do you reside in the Davis County area?
Q. Is it Weber County?
Q. Okay, and are you employed right now?
Q. Okay, where do you work?
A. I work at McKay Dee Hospital.
Q. You’re also going to school?
A. Yeah, I’m a full-time student at Weber State.
Q. What are you studying?
A. I am a senior. I’m Athletic Therapy, and getting
ready to apply for my graduate school in Health Administration.
Q. Okay, now Mr. Cluff, have you been previously employed
at Anytime Fitness?
A. I have.
Q. Were you so employed at the Bountiful location back in
February of 2008?
A. I was.
Q. What were your responsibilities there?
A. I was a personal trainer/manager of the gym.
Q. While you were so employed, did you have an occasion
to come in contact with an individual by the name of Andres
A. I did.
Q. Okay, that’s the defendant sitting next to Mr. Holje?
A. Yes, sir.
Q. Could you tell us when that occurred?
A. That was in February of 2008.
Q. What were the circumstances in which you came in
contact with him?
A. I came personally in contact with him under the
impression of him buying a personal training package from the
Q. Was someone –-did someone instruct you to speak with
Q. Who was that?
A. The gym manager.
Q. Tell us about the conversation you had with the
A. That I did, or that the gym manager did?
A. That you did.
Q. Well, the defendant was in the owner’s office, as
I walked in, explaining about his Internet company. He was
talking about the government giving him money for startup
costs, about his soon-to-be appearance on the Oprah Winfrey
show, how MySpace tried to buy it for 5 million but he
Q. Did he explain what his company is?
A. He did.
Q. Can you tell us what he explained to you as?
A. He said his company was an Internet company that
would keep pedophiles and rapists off of the Internet, and
keep them from coming in contact face-to-face with children
Q. Did he tell you what the name of his company was?
A. He did.
Q. What was that?
Q. Did he explain what the purpose of X-Tagged was?
A. To keep the Internet safe.
Q. Now, I recognize you said that he was going to help
keep people safe. Did he explain how that was going to work?
A. He did. He stated that X-Tagged used license plates
to verify individuals; and so, for example, if somebody was on
MySpace and they were talking to an individual, X-Tagged would
be a company that a person would take a picture touching their
license plate, and he said to me that if they touch someone
else’s license plate, that would be a felony same as if you
opened somebody’s mailbox and took their mail.
So I touch on their license plate. It identified them
as who they are. So if someone’s on MySpace talking to a –-to
a young girl, and they want to meet face-to-face, and she said,
“Are you X-Tagged?” she could then go see if he’s on X-Tagged
and if he’s verified, see what he looks like, see what his
license plate is, so when they meet face-to-face she can know
what to expect, know what car to see him driving up in, and
have him be verified.
Q. Now, was this supposed to be some sort of social
Q. At the time was he looking for investors in the
A. He didn’t specify.
Q. Had he indicated whether he had already received money
from any sources?
A. He did. He said the government gave him $2,000,000
for startup costs.
Q. For the company?
A. For the company.
Q. Did he indicate whether he was going to be going in
television promoting this?
A. He did. He said he had already appeared on the Maury
show. That he was signing autographs and his lawyer made him
stop because their paperwork wasn’t fully done, and that in six
month’s time he would be on the Oprah Winfrey show.
Q. Now, on that first occasion that you came into contact
with him, was there any offering as to investment in the
A. He told me what the stock price was.
Q. Which was what?
A. One dollar per share.
Q. Was there any minimum investment?
A. Yes, he did say you had to invest over $500. That was
the cost of the paperwork for his lawyer to process.
Q. Did he make any indication whether the company had
plans to go public?
A. He did. He did say once it went public, immediately
it would be upwards in the 30 to $40 per share, and that within
a relatively quick time it would surpass Google with their
stock, which was currently at 500 plus per share.
Q. Did he explain how the stock was going to be I guess
realizing those sorts of gains?
A. He did not.
Q. Did he indicate whether X-Tag was patented?
A. He did tell me it was patented.
Q. Did he tell you how much time was on the patent?
A. He did say it was a 20 year patent, and they had 18
Q. Had he received –-did he tell you whether he had
received any cooperation from the Utah Government Division of
A. He had stated that they are in process to link X-Tagged
with the DMV, to once again verify that they are the owner of
that –-of that car that they’re taking a picture with.
Q. Did he indicate to you whether he had received any
offers to buy the company?
A. He did. He said that MySpace offered him $5,000,000
for the company.
Q. Did he tell you whether he had accepted or declined
A. He said he declined it.
Q. Did he give a reason why?
A. He did. He said that MySpace declined it for the
purpose that they would not use it. MySpace, for example, has
multiple individuals on there that have fake profiles. So if
X-Tagged were to be invented and be used, it would take away
from their amount of people, which would take away from the
price of advertising that they would receive. So he said that
they would take it and sweep it under the rug. So he was not
going to allow that to happen.
Q. Now, tell –-give us the context in which this whole
conversation took place while you’re speaking with him.
A. I was trying to sell him personal training at the gym.
Q. Okay, and did you in fact, I guess, sign him up? Is
that how you would characterize it? Did you sell him any
personal training plans?
A. He agreed to buy a fairly big plan. He stated, though,
that his days are very busy. He’s with lawyers and in and
out of meetings. That he needed somebody to train him about
2 o’clock in the morning; and he said he would train three
times what I’m asking if that –-if we could get somebody
there. I said we could not, you know, appease that request.
Q. So this conversation with him talking about your
company is taking place at the same time that you were trying
to sell him on personal training and fitness plans?
Q. After this initial conversation did you make any
decisions as to whether to invest in X-Tag?
Q. At some point did you make a decision to invest?
A. I did.
Q. Tell us when that happened.
A. It was –-I believe it was Monday after that weekend I
gave him a call and asked if the stock was closed or open.
Q. Okay, and what was his response?
A. He told me to hold on for a second and he asked whomever
he was driving with, he said, “Is the stock closed or
open?” They said, “It’s still open,” and he said, “Yes, it’s
still open.” Then so I told him I would like to purchase some
Q. How many shares did you want to purchase?
A. I told him I had $4,000, so that would be the
equivalent of 4,000 shares.
Q. Did you in fact write out a check for $4,000 to X-Tag?
A. I did.
Q. When did that happen?
A. That was I believe in March.
Q. To whom did you give the check?
A. I gave it to his associate, John.
Q. Did you receive anything in exchange for that?
A. I received a convertible promissory note.
Q. I’m sorry, tell me when –-when all of this oc –roughly
when all of this occurred.
A. This was in March.
Q. Now, at some time after March did you decide you
wanted to invest further in X-Tag?
A. I did. Even in March I wanted to invest more, but
that’s all the money I had.
Q. Okay, and so at some point later did you in fact
A. I did. Mr. Esquivel called me I believe in May, told
me that there was a percent that had opened up and wanted to
know if I was interested in purchasing it.
Q. What did you tell him?
A. I asked him how much, and he told me it was $50,000
for 1 percent.
Q. Did you in fact give him $50,000?
A. No, I told him I’m not wealthy enough for that.
Q. Okay, did you invest any further money, then?
A. I did. He texted me a few days later and said that
they discussed it, and I could have it for $20,000. So I
called him, and I said, “I don’t have that money either.”
Then he came up with a solution, saying if I could come up
with $10,000, he would then credit –-the other $10,000, he
would then finance it himself.
Q. Okay, and tell us, how would you come up with $10,000?
A. So he took my $4,000 of the shares that I bought,
and he said he would convert that to the $10,000. He paid me
$2,000 for the diet plans and the personal training that I was
emailing him over several months. Then he also –-I gave him
another check for $2,000, and he took my Chevy Cavalier, which
had a broken engine, and said if I gave him the title he would
credit that for $2,000, which totals a monetary amount of
Q. At that time did you execute a second document to
memorialize the purchase of additional shares and the agreement
that you’ve just explained?
A. I did. He took my promissory note for the shares
back, and in return gave me a document for 1 percent of the
Q. You didn’t –-did you keep a copy at all of that first
–-that first promissory note?
A. No, I did not.
Q. Okay, now –-now, Mr. Cluff, I’m showing you what’s
previously marked as State’s Exhibits looks like 1 and 3.
Could you tell us what these are?
A. Yeah, these are the two checks that I made out to
Q. That’s Exhibit 1.
A. Exhibit 1 is the $2,000 I gave for the 1 percent
A. And Exhibit –-is this two?
Q. No, this is just one exhibit.
A. Okay, yeah, the first one is the 4,000 shares. The
second check is the extra 2,000 I gave in the end of May, June.
Q. I’m showing you what’s been marked as Exhibit 3. Do
you recognize that?
Q. What is it.
A. It is a copy of my contract that Mr. Esquivel gave me
after I gave him the monetary money that I had just described.
Q. Is it the second promissory note you’re talking about?
Q. Pointing your attention to the very last page, there
is –-most of this is a typed contract, and on the last page
there’s some handwriting. Could you explain to us what that is
A. Yes, Mr. Esquivel wanted me to meet him at Bogie’s,
which is a nightclub, I believe it’s Clearfield. I don’t go to
nightclubs, so I told him I would meet him in the parking lot.
In the parking lot he wrote the terms of our agreement. He
said that –-he gave me $2,000 for the gym and diet. I gave
him $6,000 in cash. Then for the title of my Cavalier he gave
me another $2,000. Then on the bottom he says that he financed
the rest by him, and X-Tagged for the other $10,000.
Q. Okay, so if I’m adding this up correctly, the 2,000
were the diet gym plans, the 6,000 representing the first
4,000, plus the second 2,000, and then $2,000 for the title
to your Chevy Cavalier?
MR. LYON: State moves to admit Exhibits 1 and 3.
MR. HOLJE: No objection.
THE COURT: Thank you. I’ll receive them.
(Exhibit Nos. 1 and 3 received into evidence)
Q. BY MR. LYON: Now, at any point in time was there a
conversation about –-we understand that you invested in X-Tag.
Was there any conversation between you and the defendant about
being able to get your money back?
A. Yes. Even on the promissory note that I initially
bought with the shares, he said that if the company did not
take off as he expected it to, we could receive our money back,
plus 3 percent interest in my case, by December of 2009. So
he, in other words, said, “You’re putting it in a bank, and
with a good interest plan. You’ll get it back if it doesn’t
Did you subsequently try to get that money back?
I did multiple times.
Were you successful in doing so?
In that contract it references being able to call due
the note at –-or after December 31 , 2009. Did you try to
call due the note after that date?
I did multiple times.
Q. In your dealings and discussions with Mr. Esquivel did
he ever tell you about a judgment of $3,075.62 that he received
against him in 2003?
He did not.
Did he tell you about a judgment of $5,597.60 in 1999?
He did not.
Q. Did he tell you about a judgment against him for
He did not.
Q. Did he ever tell you whether this was a –-X-Tag was a
He did not.
MR. LYON: Nothing further, your Honor.
THE COURT: Thank you. Counsel.
MR. HOLJE: Thank you.
BY MR. HOLJE:
Q. Okay, Mr. Cluff, just before I forget to ask this,
because it’s relevant to the charges in the Information, did
any of the money that you provided to Mr. Esquivel come from a
Q. Your own retirement account?
Q. Did any of this money come from equity in your home?
Q. Okay, just personal savings?
Q. Okay. All right, so is it your testimony Mr. Esquivel
told you to your face he’s the owner of X-Tag?
Q. At any point did he use the word “stock”? We’ve
talked about shares here. You’ve mentioned shares. He never
mentioned the word “stock,” though, right?
A. It was quite a long time ago. I don’t recall.
Q. Okay. Your own assumption is that you were buying
A. That’s what I was assuming, yes.
Q. Okay. All right. You told us you gave your money to
an individual named John?
A. Uh-huh, that’s correct.
Q. You didn’t give it to Mr. Esquivel, right?
A. No. Mr. Esquivel told me to give it to John. He
would be coming to the gym to pick it up.
Q. Okay, did John have a last name, that you’re aware of?
A. I believe it was John Steere, I believe.
Q. Okay, had you ever met John Steere before?
A. I haven’t.
MR. LYON: Your Honor, if I could just interject. I
believe, Counsel, you’re talking about the first instance, not
MR. HOLJE: I’m talking –MR.
LYON: Just so we’re clear on the record.
MR. HOLJE: Thank you. That’s a useful clarification.
Q. BY MR. HOLJE: The first time you gave any money to X-
Tagged, was that to an individual named John??
Q. Okay, and in return for this –-which was $4,000 at
the time, right?
A. That’s correct.
Q. In return for the $4,000 he gave you what?
A. A convertible promissory note.
Q. Okay, so the initial time was a convertible promissory
note, and subsequent when extra money was added, you were given
a second convertible promissory note; is that right?
A. A 1 percent document, yeah, of ownership in the
Q. Okay. All right, so that we’re clear, I’m not trying
to trick you –
Q. –-are both documents that we’re talking about
convertible promissory notes?
To my knowledge. I’m not a legal expert.
Okay, did it say that on the top of it?
On the top of it, it says 1 percent owner of X-Tagged.
Okay, but you –-do you have a copy of that anywhere?
It’s with the Judge, I believe.
Okay. All right, thank you.
MR. HOLJE: Okay, if I may approach, Judge.
THE COURT: Yes.
Q. BY MR. HOLJE: Does this document that we’re looking
at, marked as Exhibit 3, does it have a title to it?
What does it say?
“Convertible promissory note.”
Is this what you were given?
THE COURT: You can just leave it right there, in case
either one of you want to use it.
MR. HOLJE: Okay, thank you. Thank you, your Honor.
Q. BY MR. HOLJE: Your decision to give any money was
influenced by the representation of an attorney about the value
of X-Tagged shares; is that right?
A. That was for the 1 percent, yes.
Q. Okay. Tell us about that.
A. I received an email. I believe it was from–-forwarded
to me by Jason web, who worked at Advantia; and they said on
their last current valuation 1 percent of X-Tag was worth
Q. Okay, is Mr. Webb the attorney that you’re talking –A.
Yeah, that’s who I talked to initially when I got my
Q. Okay, and then it was based on that representation
that you decided to invest, right?
A. Of course.
Q. Not based on what Mr. Esquivel told you at the gym,
A. No, it was based on both.
Q. Okay, but you hadn’t given any money prior to –excuse
me, let’s clarify that. That representation was given
to you when by Mr. –A.
That was when we were in the discussions of buying the
A. Before I had given any money.
Q. Okay, thank you. Then based on some very special
arrangements that Mr. Esquivel and you made, you decided to
give him money for 1 percent, right?
A. That’s correct.
Q. It’s your understanding that this was for ownership in
the company, right?
Q. Okay, do you consider yourself an owner of X-Tagged?
A. Not at all.
Q. Did you at any point consider yourself an owner of
A. I did. I tried to execute that, with no –-no
Q. Okay, what do you mean you tried to execute?
A. I would try to give ideas, ask questions. Anytime
I asked a question that was –-that the defender could –-the
defense couldn’t answer, he would use explicit language with
me, get angry with me, tell me to get a lawyer, “You’re not
going to see your money.”
Q. You worked pretty closely with Mr. Esquivel for two
years on X-Tagged business; is that right?
A. That’s correct.
Q. Okay, in an effort to make it profitable, right?
A. Yeah, to see some sort of return.
Q. Okay, tell us what your role was specifically.
A. I had no role, I had no title. I was just a 1 percent
Q. Okay, a 1 percent owner?
Q. Did you go to meetings with him, or –A.
I tried to set up a few meetings, but I never attended
Q. Okay, so these ideas that you’re presenting for X-Tag,
those were presented how and when?
A. I would –-for one example I met –-I got in contact
with Isafe.org, which is an Internet safety company out of
California, and I tried to set up a meeting for Mr. Esquivel
multiple times, and finally he attended. I just tried to push
the company forward. He seemed hesitant. He wanted to stay
in the same level, as if it was comfortable, and none of his
promises came to fruition. So I was trying to enable it to
Q. Okay. Okay, back to –-well, sorry, did you ever at
any point attempt to convert your convertible promissory note
into shares of stock?
A. No, I did not. The company never went public.
Q. Okay. You never at any point received a stock
Q. Your evidence of ownership in the company is solely
based on a convertible promissory note?
A. That’s correct, and his recognition, well, I was on
good terms with him.
Q. Okay. All right, in that convertible promissory
note that you signed, was there language about risks involved
None. It was all positive.
There was no language about risk?
There was no risk.
MR. HOLJE: Okay. Your Honor, if I could approach?
THE COURT: Go ahead.
MR. HOLJE: Do you still have that up there?
Q. BY MR. HOLJE: I’m referring to State’s Exhibit 3. Is
this your signature on page 8 of that document?
Okay, did you read the document before signing it?
I did not.
You didn’t read it?
Q. Okay. Page 6 mentions representations and warranties
of the holder; is that correct?
Q. Okay. I’ll give you a second to review paragraph 18
of that document.
(Witness reading document).
Have you had an opportunity to review that?
Okay, is there anything in that paragraph that talks
about risks associated with this –-what we’re calling an
investment for purposes of today?
A. It does say “the holder is capable of evaluating the
risks and merits of this investment.”
Q. Okay, talk about based on your financial and business
Q. Okay. Does it say that you could suffer a complete
loss of your investment?
A. Not that I can see. I could be missing it, though.
Q. You may need to continue onto the next page.
A. It’s the next page? Okay. Yeah, it does mention it.
Q. Okay, Mr. Cluff, the document that you signed, doesn’t
it say that it’s a highly speculative investment and involves a
high degree of risk?
A. It does.
Q. Okay, and you signed that, right?
A. I did.
Q. Okay, and again, if you already answered this, I
apologize. You did nothing to convert the promissory note
into anything other than a promissory note?
A. I never had an opportunity nor any –-any question to
Q. Okay, no inclination or anything?
Q. Okay. You talked about some value for personal
training and dieting, right?
Q. Mr. Esquivel never actually did any personal training,
did he, at Anytime Fitness?
Q. Okay. Is it your testimony, then, that $2,000 of your
10,000 total was based on diet plans that you prepared for him?
A. It was diet plans and specific exercises that I would
email him –Q.
Okay, so –A.
–-in his preparation to be on Oprah.
Q. Okay, so based on a number of emails, you believe you
earned $2,000 from him, right?
A. I didn’t charge. He came up to me and said, “I will
give you $2,000 to go towards this 1 percent,” and I agreed.
Q. Okay, in essence a credit, right?
A. Yeah, he would credit it to the $10,000 –Q.
Credit the 2,000.
A. –-for the 1 percent.
Q. Okay, you never, say, invoiced him for $2,000 worth of
work? You never gave him a bill for –A.
No, I never, and I was doing it just to help out a
fellow employee. He came to me and said, “Since you’ve done
this, I will give you this much money.”
Q. Okay. Out of the kindness of his heart, essentially?
A. Well, I guess so.
Q. All right. With respect to the title to your Chevy
Q. –-1998 Chevy Cavalier, right?
Q. And this was in 2009, right, that this was going on?
A. In 2008.
Q. Excuse me, 2008. So the car would have been ten years
old then, right?
Q. Okay. A ten-year-old Chevy Cavalier, and you told us
the engine didn’t work; is that right?
A. Yeah, as I told Mr. Esquivel, yes.
Q. Did the engine even exist? Was there an engine –A.
It was in there, yeah, just –Q.
It didn’t work?
A. –-didn’t feel too good, yeah.
Q. Car was inoperable, right?
A. Yes, sir.
Q. Okay. All right, as far as the value of that car, did
you guys sit down and look it up or –A.
No, he stated that his lawyers just need collateral,
and he would give $2,000 for that title.
Q. Okay, again, a number that Mr. Esquivel just chose on
his own, right?
A. He stated it to me, and I said, “Of course.”
Q. Okay. All right, and with respect to efforts to get
your –-again, what we’ll call an “investment” for purposes of
today. With respect to getting your investment back, you told
us you tried several times?
Q. Would you elaborate on that, please.
A. In what regards?
Q. How did you try to get it back?
A. Phone calls, multiple emails. I spoke with a lawyer.
Told me to write an email stating the provision that it says
that I can receive it back by December 31 st of 2009. I wrote an
email asking just for the amount back.
Q. These are emails to who?
A. Mr. Esquivel.
Q. Okay, do you have those emails still?
A. On my account I do.
Q. Did you provide them to Mr. Sweet, the investigator in
A. I don’t believe so.
Q. Okay. Take –-I’m not –-take a guess, how many times
did you –-did you try?
Between five and ten.
Okay, and they were all by email?
Did you receive responses to any of these emails?
A. I received a few saying –-you know, attacking my
religion and using explicit language towards me saying I won’t
–-I won’t see it back. Get a lawyer.
Q. Okay, and those were emails that you didn’t see fit to
present to the investigator in this case?
A. I may have presented. It was quite a long time ago.
I don’t think I was asked for them either.
Q. Haven’t you been approached by individuals requesting
to pay you back this money?
To me personally? Not to me personally.
You’ve never been approached about repayment of your–A.
I have heard rumors of them speaking to the other two
gentlemen that they wanted to buy us out; and we had given them
time frames and the amounts, and nothing ever materialized.
Okay, no personal contact from a Steve Klemark?
No, not to me.
Or an Alan Brady?
Not to me.
Or a Shar Jenkins or –A.
No, not to me. They were, according to the other two–THE
COURT: Just tell me what you know personally.
THE WITNESS: What I know personally is that they told
COURT: No, no, no.
THE WITNESS: Oh, sorry.
Q. BY MR. HOLJE: What you know.
A. Oh, no, I didn’t. They never contacted me.
Q. Okay. Didn’t you approach Mr. Esquivel in an email
one time asking for $90,000 in return?
A. I did.
Q. Okay, and that was based on your investment of $6,000
A. Yeah, that was based on multiple things. It was based
on the amount that he said he sold the company for three or
four months prior, that I had not received any payment for. So
he was asking for my buyout.
Q. Okay, and nothing in writing that you’re aware of
entitling you to $90,000 or anything?
A. With my calculation, it was my buyout. He did say
to me on the phone –-I said, “I need the money. I need to
be bought out,” and he said, “Well, I could probably get you
$90,000, you know, by tomorrow or the next day; but if you hang
onto this, it would be worth a lot more.” So that email was
referring to the conversation we had, “I’ll take the $90,000,
and you know, you can buy me out.”
Q. You mentioned that Mr. Esquivel never told you affirm
atively that X-Tag was a Utah business, right?
A. Not that I recall.
Q. Did he mention that it was a Wyoming business?
A. No, he did not.
Q. That it was a business incorporated in any state at
Q. Have you subsequently learned –-or I mean, in the two
years that you worked closely with him did you learn whether or
not it was incorporated in any state?
A. It was –-I didn’t –-not from his voice. No, not
from his mouth. I had assumed it was, because it’s X-Tag
Incorporated he said he invented in Utah. So that’s my
Q. Okay, but working as a certain percent owner of X-Tag,
you never looked to see whether it was in fact a real company
A. I didn’t, nor did I have the opportunity. He never
gave me any –-any ability to look over the records or the
finances or any part of that dealings.
Q. Just finally, with respect to –-let’s go back to
the very beginning when you had a conversation in the gym, in
Anytime Fitness. You’ve told us about certain representations
that were made about the Oprah Winfrey show and Google buyouts
and things of that nature. You didn’t invest right after you
heard those things, right?
A. No, it was –-that was on a Saturday. I invested on
Q. Did you in the meantime speak to an attorney?
Q. You told us before that you invested after an attorney
told you this was worth 50,000.
A. That was in regard to the 1 percent.
Q. Okay, so timewise about what, two months later; is
A. I invested in February. I think there’s a copy of my
check that I gave for the 1 percent was in the end of May.
A. Or the beginning of June.
Q. Okay, and in the meantime, between those three months
did you do any investigating on your own about X-Tagged or did
you talk to Mr. Esquivel about Oprah or any of those –A.
He would make remarks saying, for numerous reasons I
can’t remember, “It’s been postponed.” “It’s been postponed.”
There was always a reason it never –-never came to fruition.
So he continued to dangle the carrot in front of our –-in
front of my face, and I believed because I’m a –-I’m a trustworthy
person and I believed him.
Q. Okay, just relied on him, didn’t do any investigating
on your own; is that –
A. I played on the website, and it was built, and I
looked at it. I talked to his lawyer, which in fact gave me
a closure that this was a legitimate company.
Q. Okay, and you told us that you were a percent owner of
X-Tagged. At what point did you decide that you were not? You
also told us you don’t believe you’re a –A.
Oh, I don’t –-well, I don’t –-I don’t believe the
company is a legitimate company or a profitable company. I
don’t know if it’s even registered anywhere; but at the point
that I –-even if it was, the point that I thought that I was
not is when I questioned some of the things that he had been
saying about certain people buying the company, it being sold,
being jerked around side-to-side. As soon as I questioned
him, he blew up, started swearing, got angry, told me to get
Q. Okay, and just finally, Mr. Cluff, you’ve told us that
you didn’t read that convertible promissory note, so if you
don’t know the answer to this, just say so. It directs you in
very specific terms on how to request that you be –-that you
get your money back. Did you follow through with any of those
A. Like I said, my father got me in touch with his
lawyer, and he looked over the contract, and he told me it
was more than appropriate to use an email to request the
provision of the money to be returned, plus interest, within
a 30 day time frame, and I sent that.
Q. Okay, and could I direct your attention to paragraph
13 of that. Does your paragraph 13 on the State’s Exhibit 3 in
front of you say notices?
Q. Okay, and does it give some addresses there?
A. It does.
Q. Okay, addresses on where letters are to be sent to
make certain things happen?
A. It was.
Q. Okay, but you didn’t write any letters to those
A. He was no longer at that address.
Q. Okay, how do you know?
A. Because he told me he was in –-I was still on good
terms with him while he left to Colorado –Q.
A. –-and I could not find –-he would not give a new
address to contact him. So the lawyer said an email would
MR. HOLJE: All right, that’s all the questions I have
for your Honor.
THE COURT: Thank you. Mr. Lyon.
MR. LYON: Just a few followup, your Honor.
BY MR. LYON:
Q. Did the defendant ever tell you whether he was licensed
to sell securities in the State of Utah?
A. He never said.
Q. When discussing your investment with the defendant
orally, were there any discussions about risks and the risk
that you might be taking by investing in X-Tag?
A. He stated none.
Q. Okay, just so we’re clear, did he –-tell us, did he
specifically tell you there was no risk associated with X-Tag,
or tell us exactly –A.
All that he told me was that it was on the verge of
turning public and becoming, as I said, 30 to $40 immediately,
and it will go above Google, which was 500 and something, and
it was on that verge. Everything was ready. He was getting
ready to prepare for the Oprah Winfrey show. The site was up.
I looked at it. With all those things in hand, I believed it
was a legitimate –-legitimate company.
Q. Okay, and Mr. Woolsey has directed your attention to
the convertible promissory note, the paragraph and the language
that discussed the risk associated with investment.
Q. Did you have any discussions with him, with the
defendant with regard to any of the risks associated with the
A. He never mentioned any risk. It was all positive.
Q. Did the defendant ever tell you how your 4,000 –-your
initial 4,000 buy in and then your other –-your second buy in,
how that –-how that was related to the –-let me start over.
With regards to your first investment of $4,000, that was equal
to how much –-what percentage in the company?
A. He never stated. It was just 4,000 shares.
Q. Okay, he never said whether that’s a percent, half
percent, 10 percent?
Q. Did the defendant ever contact you with regards to –and
inform you that the company had been sold?
A. He had.
Q. Tell us when the first time that happened.
A. He had contacted me multiple times. Not necessary
that the company was sold, on those terms, but that he had
given part of it to different combinations of companies, and
he had stated that “You’re a millionaire. We’re all done. We
don’t have to do anymore work, you know. They’re going to take
it from here.” He did, however, on December I believe it was
2009, close to Christmas, he contacted me and said that they
sold the company in its entirety.
Q. Did they say to whom?
A. He told me it was Donald Trump that bought it.
Q. When you were first looking at investing the –-I
guess it would be the February, the springtime of 2008, did he
give you an initial date of when the company would go public?
A. When he –-when we were speaking, even when I called
him to buy the shares, he didn’t even know if –-he thought it
was public at the time, so he said it was on the verge.
Q. Now, would –-with regards to the judgments against
the defendant, would that –-had you known the defendant had
those problems with credit in the past, would that have
influenced your decision in investing in X-Tagged?
MR. LYON: Nothing further.
THE COURT: Anything else?
MR. HOLJE: No, your Honor.
THE COURT: Thank you, Mr. Cluff, you may step down.
This witness be excused?
MR. HOLJE: As far as we’re concerned.
MR. LYON: Yeah.
THE COURT: Hearing nothing –MR.
LYON: Oh, I’m sorry, what did you say?
MR. HOLJE: I said as far as we’re concerned, that’s
MR. LYON: Oh, okay.
THE COURT: You may be excused, Mr. Cluff.
Your next witness.
MR. LYON: Okay, your Honor, the State calls Christopher
COURT CLERK: You do solemnly swear that the testimony
you are about to give in this case before the Court will now –in
this case now before the Court will be the truth, the whole
truth and nothing but the truth, so help you God?
THE WITNESS: (Inaudible).
THE COURT: Go ahead.
CHRISTOPHER PAUL ENGELBRECHT,
having been first duly sworn,
testified as follows:
BY MR. LYON:
Q. Please state your name for the record, spelling your
A. Yes, Christopher Paul Engelbrecht, E-n-g-e-l-b-r-e-ch-
Q. Mr. Engelbrecht, correct?
Q. Back in the fall of 2008 were you the owner of Anytime
Fitness in Bountiful?
A. I was.
Q. In the time frame of about –-during the year of 2008
did you meet the defendant?
A. I did.
Q. Tell us when you first met him.
A. Andy came into the facility on –-in February to look
at a membership.
Q. Did you have contact with him that first time he came
A. I did not.
Q. When did you meet with him?
A. I would guess it would be the second time.
Q. Tell us how the two of you met.
A. Andy came into my office to, what I assumed, talk
about a gym membership.
Q. When he comes into your office, do you initially start
talking about a gym membership?
A. The conversation was more short talk, you know,
personal, “How are you doing?” Then Andy, at that point,
had a lanyard of some sort around his neck, which then had
some digits on it, and the conversation took a turn for that.
Q. Okay, and was that lanyard dealing with X-Tagged?
A. It was.
Q. Tell us about your conversation that you had about the
A. Excuse me. Andy proceeded to explain to me that it
was a company that he had invented that is designed to give
security to the Internet, keeping pedophiles, rapists, things
of that nature off of the social sites, such as Facebook and
Q. Did he tell you what phase the company was as far as
development? Was it –A.
He at that point explained to me that they were on the
verge of going public, and that they were going to put their –at
that point have stock in the company.
Q. Did he–at any point in time during your conversation
did he –-did the conversation turn towards an investment in
A. Yes, the conversation did take that direction, and –excuse
me, but it was a conversation that dealt with, “Hurry
up, we’re about to go public; and if you’re going to invest,
you need to make a decision.”
Q. How was that communicated to you, this hurry up and
A. Each time I spoke with Andy, he would basically say,
“We’re on the verge. We’re about a week away from going public.
So right now is the best time to get in, because once it converts
over, you’ll be a millionaire.”
Q. Okay, so are you talking about subsequent conversations
you’ve had with him, too, other than this first conversation?
A. They would be, you know, as he –-he came into the gym
one other time, and yes, that’s where the conversation went as
Q. Okay, and just for right now, let’s focus on that
first conversation that you had with the defendant. When he’s
explaining the company, does he make any indication whether
individuals are interested in purchasing the company?
A. Yes, he told –-he told me that Michael Jordan was
looking at purchasing the company. He was going to be on the
Oprah Winfrey show because of it, and that he also mentioned
that it was going to be bigger than Google.
Q. Did he indicate –-did he tell you whether he was
planning on meeting with any other major –-I guess you could
say –-computer based companies?
A. What I can recollect right now is Google. Oh, wait, I
apologize, in regards to MySpace.
Q. Did he tell you whether –-what the price of X-Tag’s
stock was going to be after it went public?
A. Not a direct quote. He just continued to say it was
going to be worth millions. It’s going to be bigger than
Q. Now, on this first occasion that you meet with him, do
you make any decisions as to whether you want to invest or not?
A. No, I do not.
Q. Did you have a second –-or subsequent conversations
with the defendant?
A. Only through phone, telephone.
Q. Tell us about those conversations.
A. The last time I spoke with him before investing, he
said that they are within the next couple of days going public.
He’s not sure if I can still invest, but he will check it out,
and that at this point that I should probably just move forward
and invest, so that way –-and he’ll work something out.
Q. Did you make a decision as to whether you wanted to
invest or not?
A. Yes, at that point I –-what I had done is I called
Kyle to verify a few things, as he had spoke with his lawyer to
get some clarification; and it was at that point that I made
the decision to invest.
Q. How much did you initially invest?
Q. Now, when you spoke with the defendant about your
investment, did he talk to you about the risks associated?
A. No, it was all positive when he spoke to me.
Q. Did he –-as per your agreement and your oral agreement,
did you –-was there –-was there any decision as to
whether you could get your money back?
A. When he spoke to us, he basically made it look as
though there was nothing to be worried about. It was a win/win
situation, because verbally he had said to me that I would get
a 12 percent return on that after the given date. So it would
be no less than having money in a bank with interest.
Q. When you say “it,” under what circumstances would you
get your money back?
A. At the end of a specific period, which was the 2009
Q. Just so we’re clear, you would get that money –-your
investment back plus 12 percent. Were there –-is that even if
the company had gone public?
A. That was –-yes, that would have been –-that was the
understanding that I had, yes.
Q. Did you have any conversations with him about X-Tagged
and its affiliation with the Utah Division of Motor Vehicles?
A. Yes, I did. He had said to me that they were working
to partner with the DMV for their license plate database, and
it would be unbelievably huge. He also mentioned that he was
looking at giving them 51 percent of the company.
Q. All right, Mr. Engelbrecht, I’m showing you State’s
Exhibit 2. Do you recognize that?
A. Yes, I do.
Q. What is it?
A. This is the convertible promissory note that we had
done for this –-the investment of $2,000.
Q. Who signed that?
A. That was signed by my wife, Melissa.
Q. Were you present at that time?
A. I was not.
Q. Do you recognize the signature on the back there?
A. Of my wife, yes.
Q. That’s her signature?
A. Yes, it is.
Q. Did you have subsequent conversations with the defendant
regarding this note?
A. Excuse me?
Q. Did you have subse –-after you executed this –-I
think it’s called a convertible promissory note –A.
Convertible promissory note.
Q. –-did you have subsequent conversations with the
defendant regarding the investment of $2,000?
A. At that point, no, I did not.
Q. Did the defendant make any indication to you whether
X-Tagged was patented?
A. Yes, he had said it was.
Q. Had the defendant disclosed to you about a judgment
in 2003 for $3,075.62?
A. No, he did not.
Q. Did he discuss –-disclose to you prior to your
investment about a judgment against him in 1999 for $5,597.60?
A. No, he did not.
Q. Similarly did he disclose to you about a judgment he
received against him for $1,537.69 in 1999?
A. He did not.
Q. Did he disclose to you he was not licensed to sell
securities in Utah?
A. No, he did not.
Q. During your conversations with him about X-Tagged, did
he make any indication as to X-Tagged being a Utah company?
A. No, he did not.
Q. Had you known about the prior judgments and he was
not licensed to sell securities, would that have changed your
decision in investing in X-Tagged?
A. 100 percent.
Q. Prior to receiving that promissory note, had you
received any disclosures as to risks associated with investment
A. No, I did not.
Q. Now, in the fall of 2008 do you have a conversation
with the defendant about signing any documents to convert
A. Yes, I did.
Q. Tell us about that.
A. He called me concerning doing this conversion, and he
wanted me at that point to come over to his sushi restaurant.
I told him when I got off from the gym I would. I didn’t get
off until around 10 o’clock. At that point I called him, and
he said that he had already taken care of it, signed the
documents, and everything is taken care of.
Q. Did you in fact ever receive any stock in X-Tagged?
A. I did not.
Have you tried to receive your money back?
Yes, I did.
Have you been successful in that?
No, I have not.
MR. LYON: The State moves to admit Exhibit 2.
MR. HOLJE: No objection.
THE COURT: Thank you. I’ll receive it.
(Exhibit No. 2 received into evidence)
MR. LYON: Nothing further, your Honor.
BY MR. HOLJE:
Okay, Mr. Engelbrecht, you’re a business owner, right?
I was, yes.
You were, okay. When did you sell?
November of last year.
Q. Okay. All right, so at all times that we’re talking
about here, you were a business owner, right?
Q. All right, I’m sure as a business owner you understand
the concept of risk, right?
Q. Isn’t it –-in your opinion isn’t it kind of an oxymoron
to have an investment without risk?
Your testimony was that Mr. Esquivel said there is no
risk; is that accurate, or –
Q. Okay, he affirmatively said that, or just you guys
never talked about it?
A. No, he said that in my office.
Q. That there is no risk in this?
A. Correct, he believed in karma.
Q. Okay, as a business owner did any red flags go off or
any bells and whistles in your head?
A. At that point, no, when it had to deal with a return.
Q. I’m sorry?
A. When it had to deal with a return that I would receive
at the end.
Q. Okay, so I’m not even sure I understand that, but
you –-your decision to invest was based on conversations
that talked about Oprah Winfrey and Google and things of that
nature; is that –A.
Yes, and he also mentioned the return that we would
receive at the end of the investment.
Q. How about –-you’re friends with Kyle Cluff, right?
A. That is correct.
Q. Okay, how about the conversations you had with Kyle
Cluff and representations from his attorney?
A. What question are we asking?
Q. You relied on those before investing; is that accurate?
Q. Okay. This promissory note, convertible promissory
note, did you read it before signing it?
A. I did not.
Q. As a business owner, was that kind of the normal way
you do business or –A.
Q. What made this one different?
A. I was not there.
Q. Okay. Is your name on it?
A. My name is written in as “Chris.”
Q. Okay, that’s your name, right, Chris?
A. That is.
Q. Okay. All right. You said it was signed by your
Q. Okay. Has your wife made any efforts to get her money
back or get —-make contact with X-Tagged?
Q. Okay. Did your wife read it before signing?
A. I cannot answer that.
Q. Okay. Did you have any independent verification
from an attorney, specifically Jason Webb, about the value of
A. I did not.
Q. Did you rely on any representations from an attorney
given to your friends about the value of X-Tagged?
A. I did.
Q. Okay. You’ve been –-you were here when I questioned
Mr. Cluff, right?
Q. The –-I think the testimony was that this Jason Webb
said it would be worth $50,000; a 1 percent share was worth
Q. Was that information that was in your head at the time
A. That’s what Kyle had told me.
Q. Okay, and that attorney, to your knowledge –-I understand
you didn’t speak to him, but to your knowledge, was he
sort of saying this was a legitimate company?
Q. Subsequent to making an investment did you do any
independent investigation about whether or not X-Tagged was
incorporated in Utah or where it was incorporated or anything
Q. Okay, did you ever hear anything through the grapevine
A. Not until a month ago.
Q. Okay. You told us that you asked for your money back,
A. I did.
Q. Again, can –-can you elaborate on the efforts you
went through to get a money back?
A. In December 2009 I, one, sent an email to Andy directly
asking for it back. I received no reply; and two, I sent a
certified letter to the address on the contract, and that was
sent back as a return.
Q. Any reason why? I mean, no forwarding address, things
A. No forwarding address; and if I remember correctly,
address is no longer there, or something of that nature.
Q. Okay, so just those two things, right; an email with
no response and a letter that was unsuccessful?
Q. Okay, and what efforts did you go through after that,
or how did you get here after that point?
A. How do I –-to this point here?
A. Well, at that point, that’s when I went and visited
Q. Okay, on your initiation or were you contacted? In
other words –
A. No, it was on my initiation.
Q. Okay. Didn’t you also make a police report on this
A. No, I don’t –-I don’t recollect.
Q. You don’t recollect if you met with the Bountiful
A. At this point I can’t remember.
Q. Okay. After sending an email or sending a letter,
haven’t you been contacted by numerous individuals about
A. No, I have not.
Q. Ever in your life?
A. Not directly from them, no.
Q. Well, did anybody talk to your wife, or did anybody
talk to your friend and say, “Pass the word onto Chris,” or –A.
Yes, through friends, not through my wife.
Q. Okay, if you’d explain that, please.
A. From what I understood, they would give a payment to
us, but there was no –-that I understood, there was no leading
time. There was nothing that took place in order for that to
Q. Okay, so you personally have never been contacted by a
A. I was recently contacted, I think it was by Steve, as
of about two weeks ago.
A. But it wasn’t concerning payment. It was to sit down
and go over information that he said I needed to know.
Q. Okay, was that the first contact you’d ever had with
Q. Okay, what about an Alan Brady?
Q. No contact from him; or a Shar Jenkins?
A. Actually there were emails –-I apologize, there were
emails just recently sent as of –-just as recent. I apologize,
my mind was thinking in the past, but there were emails sent
speaking with apparently his lawyer for me to try and gain
payment back. They said that I would be paid back.
There was a picture of a check with my name on it
for $2,000. There were text messages at that point that were
–-or I apologize, emails that were sent, and me requesting
that it would be the amount plus interest, and they informed
me, whomever I was speaking with via email, that I would be
paid back. I needed to work through his lawyer, Mr. Martinez,
and all communication at that point fell off. I had never
received nothing more.
Q. Okay, and can you put a time frame on this for us?
A. To my remembering would have been the December time
Q. Of 2011?
A. That’s correct.
Q. So that we’re clear here, your testimony is that
those efforts we’ve just talked about, those communications
we’ve just talked about via email and directing you to contact
lawyers and that, that’s the first contact you’ve ever had
about getting repayment, is just –A.
Other than from Kyle and speaking with him, I have
never had any type of direct contact, other than that, that I
Q. Okay. Okay, if you’ll bear with me, we can probably
–-I think a lot of this has been covered. The only other
thing, just by way of clarification, I think you mentioned,
like Mr. Cluff did, that there was a representation made to
you about the DMV participating in this idea of X-Tagged,
right? Do you remember that?
Q. That representation was specifically –-I think the
way you worded it was he was in the process of working with
them; is that –-did I get that right?
A. That’s correct.
Q. Okay, not that there was any sort of affirmative deal
in place, but that that was an effort that was being made; is
Q. Did you ever follow up with Mr. Esquivel about some
of the things you’ve testified to with respect to interested
parties and X-Tagged, people like Michael Jordan or Google or
any of them?
No, I did not.
Q. Okay. Did you have any sort of –-did you think that
you were an owner of X-Tagged?
Q. Did you make any efforts to direct its affairs or, you
know, give ideas and input on it?
Q. Essentially is it –-is it fair to say that your buddy
Kyle made an investment and thought it was good, and you jumped
MR. HOLJE: That’s all the questions I have.
THE COURT: Thank you, Counsel. Mr. Lyon?
MR. LYON: I’ve got nothing further from this witness.
THE COURT: Okay, thank you, Mr. Engelbrecht, you may
Your next witness?
MR. LYON: Similarly, your Honor, may he be excused?
THE COURT: Yes.
MR. LYON: You’re free to stay or go.
The State calls Ryion Butcher.
COURT CLERK: You do solemnly swear that the testimony
you are about to give in the case now before the Court will be
the truth, the whole truth and nothing but the truth, so help
THE WITNESS: Yes.
having been first duly sworn,
testified as follows:
BY MR. LYON:
Q. Okay, Mr. Butcher, could you please state your name
for the record –A.
Q. –-spelling your first and last name.
A. It’s Ryion Butcher, R-y-I-o-n B-u-t-c-h-e-r.
Q. Mr. Butcher, were you employed at Performax Gyms in
Clearfield in 2009?
A. Yes, I was.
Q. During that time did you work with Mr. Cluff?
Q. Who testified here today?
Q. At the time, Mr. Cluff was also working at Anytime
A. That’s correct.
Q. In your discussions and interactions with Mr. Cluff,
did you ever have any discussions about X-Tagged?
Q. At any point in time did the defendant come into
Performax Gyms and have any discussions with you about X-
A. Yes, he did. He came in.
Q. Could you tell us when that happened.
A. That happened April 2009.
Q. Tell us about this first encounter you’ve had with
A. Yes, he was coming in to talk about the company and
meet with Logan Laws and Kyle.
Q. Okay, and Logan Laws is another individual that
happened to invest?
A. Yes, he was an 18-year-old kid that invested.
Q. Was this meeting set up by Mr. Cluff?
A. I believe it was set up by Mr. Esquivel.
Q. Okay, and so Mr. Esquivel was coming to meet with
Mr. Laws; you just happened to kind of sit in on the meeting?
A. Yes, they –Q.
Okay, during that meeting the defendant talked about
Q. Could you tell us what he told you in describing the
A. Yes, he told us about this new social networking
company. That it was going to be bigger than all the current
social networking companies out there.
A. Google and –-well, I mean, Facebook and MySpace.
Q. Did he explain the company to you?
A. Yes, he was –-he talked about how they used the
license plates to verify individuals that it was really them
that were on the social networking site. That you would have
to get your picture taken with your license plate, and therefore
it would verify you that you’re that person.
Q. Now, did he tell you whether there were individuals
wanting to purchase X-Tagged?
A. Yes. He said that Google was interested in purchasing
X-Tagged. He was talking about a meeting with them within the
next two weeks.
Q. Did he give a price that investors were willing to pay
A. Yeah, he was throwing all sorts of numbers around. He
said upwards for $500,000,000 to $1,000,000,000.
Q. Did he make reference to one Hugh Hefner being
A. Yes, he says he turned Hugh Hefner down. He also
stated that he was going on the Oprah show.
Q. Now, in this contacts did he indicate to you whether
there was an opportunity to buy into the company?
A. Yes, the said there was a half of a percent left in
the company, and it was the last half percent, and that if I
wanted in, I better act quickly, because there were so many
investors in line looking at buying this last half percent up.
Q. Did you in fact –-let’s see, did he tell you what
that percent would be worth?
A. Yes, he said it was currently worth $50,000.
Q. Did he explain to you how that’s worth –A.
Q. –-$50,000? Did he explain what it would be worth
in the near future?
A. Yes, after –-well, after that, that meeting, and
after I invested it seemed like every single week the amount,
the price of it kept going up every single week.
Q. Okay, let’s just talk –A.
Q. –-Mr. Butcher, just as to this first meeting –A.
Q. –-did you in fact invest in the company then?
Q. How much did you put in?
A. I put in 25,000 –-I mean, $2,500 at first.
Q. He was wanting to sell half a percent for $5,000; is
Q. Okay, and so tell us how you put in $2,500 as opposed
A. Yes. Well, he said that if I would just pay the 25
for the half percent, and that I would kind of help out, then
that would make up for the rest.
Q. Okay, now at this time did the defendant tell you
whether X-Tag was patented?
Q. Did he tell you whether it was an LLC in Utah?
Q. Did he tell you whether it was a business in Utah?
Q. Did he explain to you whether there was any sort of
affiliation between the Department of Motor Vehicles and X-Tag?
Q. What did he tell you?
A. He said that they were onboard with X-Tagged.
Q. When you say “onboard,” what does that mean?
A. That they were going to –-they were going to be a
part of X-Tagged and authorize the use of people’s license
plate, getting their help with X-Tag and making it safe.
Q. Okay, when –-and did he explain how that –-the
interaction between X-Tagged and the DMV was going to take
Q. Now, when you make your initial $2,500 investment, do
you remember what day?
A. Yeah, I believe –-I can’t remember the specific day.
Q. All right, well, let me just see if I can help refresh
your recollection. I’m showing you what’s been marked as
State’s Exhibit No. 4. Do you recognize that?
Q. Tell us what you’re looking at.
A. April 7 , 2009, a check for $2,500 made out to X-Tag.
Q. That’s your check?
Q. Okay, and that’s the first investment you make?
A. That’s correct.
Q. Okay, and did you receive –-in exchange for the
$2,500 did you receive anything?
A. Yes, I got a –-I have a document saying that –Q.
A. –-I would receive 50 –-50,000 shares.
Q. Okay, and I’m showing you –-this is all part of one
exhibit; but can you tell us what you’re looking at there?
A. Basically my investment paper –Q.
A. –-of 100,000. That was 100,000.
Q. Okay, and so –-okay, and from whom did you receive
that investment papers?
A. Mr. Esquivel.
Q. Okay, now after giving the first $2,500 were you
again approached by the defendant as to another investment
A. Yes, he said –Q.
When did that happen?
A. Just shortly after. About probably two weeks.
Q. Okay, tell us what happened.
A. He contacted me again and said that another half
percent became available.
Q. Were you interested in purchasing another half
Q. Did you in fact make another investment?
Q. How much was the second one for?
A. For $2,500.
Q. Again, referring to what’s been marked as Exhibit 4,
do you recognize these?
Q. Can you tell us what they are?
A. It’s my second investment of $2,500, and another
certificate saying that I own 50,000 shares.
MR. LYON: Okay, State moves to admit Exhibit 4.
MR. HOLJE: No objection.
THE COURT: Thank you. Just 4? They’re all the same
MR. HOLJE: They’ve all –-for the record, there are –Exhibit
4 has four documents within it.
THE COURT: Thank you. I’ll receive 4 with the four
(Exhibit No. 4 received into evidence)
Q. BY MR. LYON: Now, Mr. Butcher, in your conversations
with Mr. Esquivel, at any point in time did he let you know
that he had a judgment against him in 2003 for $3,075.62?
Q. Did he let you know he had a judgment against him in
1999 for $5,597.60?
Q. Did he let you know that he had a judgment against him
in 1999 for $1,537.69?
Q. Did he ever have a conversation with you about the
risks associated with investment?
Q. Did he ever let you know –-have a conversation with
you that you could get your money back if things didn’t work
out, things didn’t go public?
Q. Tell us about that.
A. Yes, he told us that rest assured that anytime we
wanted out, he would give us our money back with 12 percent
Q. Did he give you a date as when you could get that
A. He said anytime, because he –-he mentioned that he
had investors lined up, and any one of them would gladly jump
on that, that percent and buy it up for more than what I had
paid for it.
Q. Did you at anytime in fact try to exercise that right
and get your investment back?
Q. Tell us when that happened.
A. That happened within probably a month later. I
approached Mr. Esquivel and I said, “You know what, things
aren’t going too well. I’m getting ready to purchase a house.
I could really use my money back. Could I get that back?” and
he said, “Absolutely.” He goes, “I have an investor that’s
willing to pay $50,000 right now for it, so it will only be
helping X-Tag, but yeah, I’ll give you your money.” Then he
stated he would give me that money Monday.
Did you in fact receive your money back?
A. No, and then he told me I’d receive it on Wednesday.
Then he just kept dragging it out and out and out further and
further and further.
Q. At any time did the defendant let you know that he was
not licensed to sell securities in Utah?
No time did he ever.
Q. Other than those –-as part as what’s been received as
4, we’ve got those two documents memorializing the investment
you made, did you receive any other written explanation as to
the risks associated with investing in X-Tagged?
MR. LYON: Nothing further.
THE COURT: Thank you.
BY MR. HOLJE:
Q. So, Mr. Butcher, is it true that the only documents
you were given throughout this entire ordeal were those that
have been presented as State’s Exhibit 4?
Q. Okay, you didn’t –-unlike your friends, you didn’t
receive a convertible promissory note?
Okay, and I just –-for the record we need to clarify
a couple things. If I could direct your attention to the
consent of all members of the Board of Directors dated
April 7 , I think you have that one in front of you?
A. It’s right here.
Q. Oh, excuse me. That one mentions, does it not,
Mr. Butcher, that you were being granted 150,000 shares, and
then parentheses 100,000; is that right?
Q. Okay, do you –-do you know which is accurate?
A. The –-well, let’s see.
Q. In other words, the wording says 150 –A.
Yes, the wording –-he mixed up the wording.
Q. Do you know which is accurate?
A. For the 1 percent, it’s 100,000 for half it’s 50.
Q. Okay, and with respect to what’s being given in
exchange for that, this document dated April 7th says $5,000;
is that right?
Q. Is that what your copy says?
A. My total investment is 5,000, uh-huh.
Q. Okay, but on 4/7 of ‘09, on April 7 , you didn’t give
him $,000, right?
A. No, no.
Q. Okay. At no point did you, in a single episode, give
A. No, it was –Q.
A. –-two separate instances.
Q. Okay, with respect to the other one dated 4/7 –-4/16,
actually, of 2009, if I could direct your attention as well
to the amount given, the wording there says $5,000 was given,
right? I’m looking at the one dated April 16 th of ‘09.
Q. Okay, does that say that you gave him $5,000?
A. Yes, total I’ve given him $5,000.
Q. Okay, but not on that occasion, right?
Q. In fact, in parentheses it says 2,500, right?
Q. Okay. All right, I just wanted to put that on the
Q. –-to make sure that was –-that that was clear. Did
you believe you were an owner of X-Tagged?
Q. Were you ever told you were an owner or –A.
He would say –-he would say that we are, but we
really had no say in anything to do with X-Tag.
Q. You were –-this document that you signed here, the
ones that –-the two documents we’ve been talking about, they
call you the business associate, right?
Q. Okay, and they say that you will be taking an active
roll in the business of the corporation, right?
Q. Okay. You have promoted yourself as the X-Tagged
representative of Utah, right?
A. That’s the title he gave me.
A. Which I have no idea what it even means.
Q. Okay, did you –-didn’t you do a You Tube video sort
of promoting X-Tagged?
A. Yes, we did a funny –-promoting the stickers –Q.
A. –-that he goes around and puts on cars.
Q. Okay, and you –-you represented yourself to the world
through the Internet that you were the Utah representative of
Q. Okay, as that Utah representative of X-Tagged, what
was your role?
A. Basically just wanted me to help with things. For
instance, we wanted to change his website, make it better,
and so we were –-I was actively engaged in helping him fight,
somebody to do that and also do a promotional –-like a video
on how to use the X-Tag website.
Q. Is it fair to say marketing, you were –A.
Q. –-involved in marketing X-Tagged in Utah?
Q. Didn’t you represent to Mr. Esquivel or others
involved in X-Tagged that you had a marketing degree?
Q. At any time?
A. Not at any time.
Q. Are you aware of anybody suggesting that you did have
a marketing degree?
A. Some people might assume that, just because that’s
what I did at Performax. I would go marketing the gym.
A. So some people may interpret that as I must have a
marketing degree, but I do not.
Q. Your sworn testimony is you’ve never told anyone that
A. I never told anyone.
Q. Okay. How long did you act as the –-or are you still
acting as the Utah representative of X-Tagged?
A. No, I recent –-I found out quite quickly, started to
do my homework on Mr. Esquivel, and started to find out a lot
of the things that he had been telling us were in fact lies.
Q. How long would you say you acted in that roll?
A. Two weeks.
Q. Okay, so all in –-I think you told us you provided
money in April, early April of 2009?
A. Because I started getting suspicious pretty quick.
Q. Okay, are you aware of the date of the video that you
sent out or –A.
Q. Okay. All right, so you met in–-you met Mr. Esquivel
at a –-at a different gym than the one we’ve previously been
discussing, right? It wasn’t Anytime Fitness?
A. That’s correct.
Q. Okay, and when you met him, were either Kyle Cluff or
Chris Engelbrecht there?
A. Kyle was.
Q. Kyle was there as well?
Q. Okay, and his experience, did that inform your –-your
desire to meet with Mr. Esquivel?
A. No, it was after sitting down with Mr. Esquivel that I
was –-I became interested.
Q. Okay. Just purely out of curiosity when he walked in
the door you wanted to meet, or did Kyle say, “Hey, do you want
to sit down and meet?”
A. Yeah, just I wasn’t doing anything at the time, and
they were all going to meet, and so –Q.
A. –-I went and sat in.
Q. Okay, now so that we’re clear, I mean, your buddies
had given him money almost a year earlier, right?
Q. Okay, were you aware of that at the time?
A. At that time, yes.
Q. Okay. What we’ve heard here today in testimony is
that Mr. Esquivel talked about going on Oprah Winfrey as early
as March or February of 2008, and you met him in April of 2009,
Q. Is it your testimony that you heard him from his mouth
say he was going on Oprah Winfrey at that time?
Q. Okay, and did any red flags go off? Did your buddy
say, “Hey, he told us that a year ago and it still hasn’t
A. Well, they were on –-I think they still believe that
it was going to happen, because he would keep pushing things
further and further, just like the meeting for Google. It
would come time to meet with Google, and all of a sudden the
meeting’s changed to this month or this week or this week. It
just always kept changing. The dates always kept changing.
Q. Okay. Okay, I think you told us –and I apologize
if I get the amounts –-you correct me if I’m wrong –-did
you tell us that he said it was worth –-X-Tagged was worth
500,000,000 to 1,000,000,000?
A. Yes, he has told me that before.
Q. Upwards of that, right?
Q. Okay, and that he was willing to give you 1 percent
ownership of that for $5,000 or for –-yeah, I mean, ultimately
2 increments of a half percent for $5,000?
Q. Did you do any math there to –A.
I know, I feel really stupid. Yes.
Q. Okay, so when he comes back and offers you a half a
percent more, the difference in time there was just these 10
days, right? Is that –-is that accurate –A.
Yes. Yeah, there –Q.
–-there wasn’t a whole lot of time that had passed.
Q. Okay, in those 10 days did any of these –-let me
rephrase that. What kind of –-what kind of interaction did
you have with him during those 10 days?
A. I was trained to help promote the website, get stickers
out and schedule things. A lot of which Andy would fail to
show up or appear or get the things that I needed to me.
Q. Did you use the gym –-were you a manager at the gym,
A. I was –-I did –-I was the sales manager and did
marketing, and also personal training.
Q. Okay, and did you use the gym as sort of a vehicle to
get X-Tagged paraphernalia out there?
A. Did I use the gym?
Q. What I mean is, you know, did you promote X-Tagged
through the gym?
A. Not that I can recall.
Q. Didn’t have stickers available at the desk or –A.
Q. –-anything like that?
A. No, we were –-we were going to shoot a commercial
Q. All right, you testified earlier that –-or when
Mr. Lyon asked you about X-Tagged being a Utah business, was
there conversations about it being incorporated in any other
Q. Anybody ever bother to ask, that you’re aware of?
Q. You certainly didn’t ask, right?
Q. Okay. Have you subsequently learned that it’s a
business in Wyoming?
Q. Okay, when did that happen?
A. Probably a month ago.
Q. A month ago is when you found out, not when it was
made a business in Wyoming; is that –A.
Yes, that’s correct.
Q. Again, with respect to –-I’ll ask you what I asked
Mr. Engelbrecht –-with respect to the DMV, your testimony
before was that DMV was onboard. Is it possible that that
conversation said it’s in the works or something a little
softer than onboard?
A. I understood it to be that they were full on going –
A. –-and that it was active.
Q. Okay, so those weren’t his words that they were –the
deal was signed and stamped and ready to go. That’s your
interpretation of it, right?
Q. Okay. You mentioned Logan Laws was there, right?
A. That’s correct.
Q. Logan Laws, are you aware, has asked for money and
received money back in this instance?
A. Yes, but not without a fight.
Q. Okay, are you friends with Logan Laws?
A. Yes, I am.
Q. Okay, have you made any efforts like Logan to get your
Q. Explain those, please.
A. Yes, when I first initially asked for my investment
back, I did it in a very nice way, after I found out that
through my research some of the things that Andy had told us
were lies. I just asked for my money back, didn’t want any
confrontation or anything.
When he just kept pushing the dates out, I called him
and I said that he wasn’t an honest man, and he blew up and got
mad at me, and then started telling all the other X-Tag people
that he kicked me off of X-Tagged because I was gay and I was
posting gay pictures of myself on X-Tag.
I do have an email stating that –-saying that he sent
a mass message out to everyone saying I was gay and I posted
gay pics, and that I would never see a penny of my investment.
Q. Subsequent to that have you sort of gone on your own
campaign on the Internet to –A.
Q. –-to say bad things about him?
A. Of warning people about Mr. Esquivel.
A. And the investment scam.
Q. Okay, and that includes, you know, blogging and
posting descriptions on Internet sites and those types of
A. Yes, telling my story basically.
Q. Okay, how long has that been going on?
A. For a while.
Q. Put in terms of months?
A. Probably two years.
Q. Okay, have you been approached by –-you’ve heard me
ask this question to your friends. Have you been approached by
Alan Brady, Steve Klemark, Shar Jenkins in regards to getting
A. Just Alan Brady.
Q. Okay, when did that happen?
A. Alan Brady, I’ve met with him once. I can’t recall
the day he came to Performax, though, and met with me, and
told me he’s working on getting our money back, and he has all
sorts of stuff on Andy Esquivel. I don’t know if he was just
pretending that he wasn’t with Andy anymore, but he told me
that Andy was indeed a fact –-a scam, and that there was a lot
more investors than I knew that were scammed, and he had a list
of them. Then he told me –
Q. Did you –A.
–-that he would try to get our money back, but
nothing ever happened.
Q. –-have you ever refused an offer to –A.
Q. –-give you money back?
Q. Never at any time?
A. Never at any time. They always said they were –-they
would say, “All right, we’re going to get you your money back,”
and then nothing would ever happen. Collin –-or Leonard
Martinez, his attorney, I called –-I’ve called him at least
20, 30 times and have not received an answer, or anything
about payback. Matter of fact, they were trying to negotiate
a payback the last time we were in Court with Andy, and said
that they were going to try and get us some –THE
COURT: Well, wait just a minute. Wait until
THE WITNESS: Oh, okay.
Q. BY MR. HOLJE: As long as you bring it up, have you
been approached by anyone at the –-and I’m not talking about
today, okay? Specifically Kathy Morris, have you ever been
approached about anybody about, you know, your desire to go
forward with this case versus getting some money and drifting
off into the sunset?
Okay. Did you refuse to take money at that point?
A. No, I never refused to take the money. I even said
he didn’t have to pay me back the 12 percent interest. I just
said, ‘Just give me the 5,000 and we’re done.” I mean, that’s
Q. From that time you’ve never heard any offer about
getting 5,000 back; is that accurate or –A.
MR. HOLJE: I think that’s all the questions I have for
you, Mr. Butcher.
THE COURT: Thank you. Mr. Lyon?
MR. LYON: I’ve got nothing further from this witness.
May he please be excused?
THE COURT: Thank you. Mr. Butcher, you may step down
and be excused. Thank you for coming today.
MR. LYON: You’re free to stay or to go.
THE WITNESS: Okay.
THE COURT: Your next witness.
MR. LYON: The State calls Adam Sweet.
COURT CLERK: You do solemnly swear that the testimony
you are about to give in the case now before the Court will be
the truth, the whole truth and nothing but the truth, so help
THE WITNESS: Yes.
having been first duly sworn,
testified as follows:
BY MR. SWEET:
Q. Would you please state your name for the record,
spelling your last name.
A. Adam Sweet. Last name S-w-e-e-t.
Q. What’s your occupation?
A. I am a securities compliance investigator for the Utah
Division of Securities in the Utah Department of Commerce.
Q. How long have you been so employed?
A. For approximately 19 months.
Q. Were you assigned to perform the investigation
regarding the defendant?
A. Yes, I was.
Q. Okay, you’ve sat through the testimony of Mr. Cluff,
Engelbrecht and Butcher, correct?
Q. Okay, now in your investigation of the defendant, did
you locate any past judgments that have been –-I’m not sure
what the proper (inaudible) terminology is –-levied against
Q. Rendered, thank you.
Q. Okay, could you tell us about those?
A. Yes, I can. Can I refer to my notes?
MR. HOLJE: Your Honor, we’ll stipulate that what
exists on, you know, on Court records is –-it is what it is.
I think the records an speak for themselves, rather than go
through half a dozen judgments.
MR. LYON: That’s fine, and I think I’ve gone through
each one of the witnesses what those judgments are. If they’re
willing to stipulate to that, that’s great.
THE COURT: Were there four of them?
MR. LYON: Three.
THE COURT: Three of them.
MR. LYON: Two in 1999. One for about 5,500, the other
for just over 15, and one in 2003 for just over 3,000.
THE COURT: You’ll stipulate to those?
MR. HOLJE: Not to the –THE
COURT: That they exist?
MR. HOLJE: That they exist, right.
THE COURT: All right, thank you.
Q. BY MR. LYON: Okay, did you also perform an investigation
as to whether X-Tagged is a registered business?
A. Yes, I looked into whether or not it was a registered
Q. Okay, and how did you do that?
A. By accessing the Utah Division of Corporations.
Q. According to the Utah records is X-Tagged a registered
business at all?
Q. Has it ever been?
A. In Utah, no, not by the name of X –-X-Tagged had no
Q. Did you investigate whether Mr. Esquivel is licensed
to sell securities in the State of Utah?
A. Yes, I did.
Q. Has he ever been so licensed?
Q. Do you –-you’re familiar with the assertion that the
defendant made representations that he had communicated with
the Division of Motor Vehicles, and they were going to grant
authorization to communicate with the State database?
A. I’m sorry, I didn’t hear the –-didn’t get the first
part of the question.
Q. Let me give you a better question.
Q. At all during your investigation, did you investigate
whether the Division of Motor Vehicles had granted defendant
consent or access authorization to communicate and access the
database containing all of the –-the DMV records?
A. Yes, I did. I did contact the Utah DMV and spoke
with someone and received a letter in return verifying that
–-without looking at it –-that X-Tagged would –-or Andy
Esquivel, that they had never had any dealings or operations
with them, and that –-it said in the letter, generally
speaking, they would never condone such activity, by allowing
a private company to gain access to drivers license and
people’s personal information.
Q. That’s because –-is it –-do you know whether that
information is protected by State and Federal statute?
A. I don’t know that.
A. I do know that now, after glancing down at the letter.
I don’t know if you want me to read that brief part.
Q. That’s sufficient.
Q. Do you –-did you investigate whether X-Tagged had
ever become a publicly traded company?
A. No. I mean, as far as I understand as a personal
investigator, that it was not a Utah registered as a business.
I kind of stopped there.
Q. Okay, so you would –-there’s no need to even go
A. Yeah, as far –-yeah.
Q. Did you check to verify whether X-Tag has ever been
A. I did. I did an online search of the U. S. Patent
Office, and there were no results for X-Tagged.
Which would indicate?
A. As far as I understand, it would indicate a patent
that X-Tagged was –-had claimed or was in the process of
Meaning there is no patent?
Not –-no, no.
MR. LYON: Okay, I’ve got nothing further.
THE COURT: Thank you.
BY MR. HOLJE:
Q. So, Mr. Sweet, you –-you investigated X-Tagged in
other states, correct?
A. I –-as –-I investigate –-no, I just investigated
the Utah –Q.
Did you –-did you look into whether or not there was
a –-the name X-Tagged was being reserved in Colorado?
A. It was either Colorado or Wyoming. I think I’d come
across that X-Tagged is a registered corporation there, in one
of those two. I can’t remember.
Q. Okay, and that that name –-well, does your report
refer to anything about the name X-Tagged being held in the
State of Colorado?
A. Let me –-let me check. It would right here if it
did. I do have in my report that X-Tagged is not registered
in Utah. X-Tagged held a name reservation in Colorado from
April 1 , 2010 to July 30 , 2010, with Darrel Acumen listed as
Q. Okay, not Andy Esquivel?
A. No, if it had said his name I would have put that in
Q. Okay, are you aware that X-Tagged is incorporated I
the State of Wyoming?
A. No. If I –-well, no, I’m not.
Q. Okay, your investigation –A.
If I –-no, I mean, if I had reason to, I mean, to
search a particular state I would. I just don’t rand –-you
know, randomly. I think Colorado I learned that he was –-had
visited Colorado or was doing business in Colorado. So I went
to that State’s corporation’s website. So I had reason to look
there, and that’s why I came across Colorado’s information –Q.
A. –-but I don’t recall. Wyoming’s new to me. I don’t
recall any of the investors testifying –Q.
A. –-anything about it.
Q. You were being told that X-Tagged was a bogus business
A. By who?
Q. Well, by any of the individuals that you’ve –-that
you met with as part of this investigation?
A. Um –Q.
Any of these alleged victims who’ve testified today?
A. –-they were complaining –-they submitted –-they
complained that they invested money with X-Tagged and Andy,
and hadn’t got their money paid back; and they proceeded to
tell me the representations that were made to them.
Q. Okay, but not necessarily that X-Tagged was not an
actual business or anything?
A. Um –Q.
In other words, an alter ego for –A.
–-I don’t remember an investor saying X-Tagged is not
Q. Okay, as far as you were concerned, it was, right? It
just didn’t –A.
Until I researched it and found out that it wasn’t
registered in Utah, but had a name reservation in Colorado.
Q. Okay. All right. Did you –-did you come across –well,
let me try that again. You did come across some other
businesses that Mr. Esquivel was involved in, right?
A. I did. So yes.
Q. Is single and dating one of those?
Q. Okay, any –-and that was registered in the State of
A. Yeah, I have that registered for the State of Utah.
have the registration date, the expiration date, and then what
position Mr. Esquivel held.
Q. Okay, any sort of overlap that you were aware of, or
connection between single and dating and X-Tagged?
A. No. I mean, when we do a search of the corporation’s
website we can search of we know the names of the company.
Specifically we can do it that way; or if we don’t, we can put
in the principal’s name, the individual’s name, and that will
pull up businesses registered to that person. So –Q.
A. –-it doesn’t explain any connections.
Q. But your investigation didn’t focus on whether or not
the two were somehow related?
A. No, because the complaints were not about single and
MR. HOLJE: Okay, Judge, if I could have just one quick
THE COURT: Go ahead. Are you all right?
COURT CLERK: Yeah.
MR. HOLJE: All right, I think that’s all the questions
I have for you. Thank you.
THE COURT: Thank you. Any followup, Mr. Lyon?
MR. LYON: Not from this witness.
THE COURT: Thank you, Mr. Sweet. You may step down.
MR. LYON: Just one, Judge. State calls Tom Brady.
COURT CLERK: You do solemnly swear that the testimony
you are about to give in the case now before the Court will be
the truth, the whole truth and nothing but the truth, so help
THE WITNESS: Yes, I do.
having been first duly sworn,
testified as follows:
BY MR. LYON:
Q. Would you please state your name for the record,
spelling your last name.
A. Thomas Brady, B-r-a-d-y.
Q. What’s your occupation?
A. I’m the acting director of enforcement for the Utah
Division of Securities.
Q. How long have you been so employed?
A. Well, I’m currently in two roles. I’m also the
securities analyst. I’ve been the acting director for a month.
Q. How long have you been with the Utah Division of
A. Just under three years.
Q. Prior to taking a job with the Division of Securities,
did you receive any education?
A. I’m a lawyer; I’m an attorney.
Q. Okay, let’s talk about your education. You received
an undergraduate degree?
A. Yes, my undergraduate degree is in political science
from Brigham Young University.
Q. You say you’re a lawyer; you’ve gone on to law school?
A. Yes, I attended Michigan State University.
Q. Okay, and when did you finish up there?
A. In 2009.
Q. Tell us about your responsibilities as a securities
analyst and then Director of Enforcement.
A. Okay. As the analyst I’m more or less a staff
attorney. I’m a staff attorney or in-house Counsel for the
Division of Securities in the enforcement section. My responsibilities
are mainly to take the investigative reports that the
investigators conclude, review them, ensure that the elements
are met for whatever the allegations or causes of actions are,
and then prepare the pleadings for that case. Also for ongoing
cases I negotiate settlement agreements with opposing Counsel.
Q. Do you write any technical reports or articles based
upon –-as an analyst?
A. Yes, yes. When legal issues arise, it’s my task to
research those out. I prepare memos explaining the nuances
that come up in our cases.
Q. Provide legal Counsel to that division, then?
Q. Okay, now tell us about –-as an acting director, tell
us what your responsibilities are.
A. My responsibilities are to screen incoming complaints,
supervise attorneys and investigators with their respective
case files. Also to –-I am involved in negotiations on
certain administrative proceedings.
Q. Now, are you affiliated with any groups related to
A. Related to securities law, yes. I’m a member of the
North American State Securities Association.
Q. Have you held any positions of responsibility within
A. Yes, I’m a member of the Mountain Region Enforcement
Q. Okay, and so what does that mean?
A. In that region or zone, there are representatives from
each state. I think there are eight or nine states in our
region that are represented, and we meet semi-annually to
discuss certain trends that are occurring, certain fraudulent
trends that are occurring within our respective states. We
also do what’s called “de-conflicting,” where we discuss
potential targets that we’re investigating one state that may
have carryover into a different state. Mainly it’s working
Q. As a result of your training and experience, do you –can
you tell us what a security is?
A. Yes, I can.
Q. What is –A.
Would you like me to?
A. Well, a security, by name, under the statute, under
61-1-13 could be a stock, a note or a bond, an interest in
an LLC. There are certain categories that it falls under.
There are –-or specifically named categories. Then there
are broader categories, such as an investment contract that we
Q. Okay. Are all securities regulated by the State of
A. Yes. In addition to that, securities are regulated by
the Federal Government.
Q. Okay. Due monitoring. Can you tell us why they’re
A. To protect investors, more or less. To protect the
investors. Not to inhibit business, but protect the investors.
Q. As part of protecting investors has the State imposed
certain regulations and disclosures associated with the sale of
A. Yes, they have.
Q. Okay, and is that primarily located in 61-1-1?
A. Yes and no. There are three areas where securities
are regulated under –-under the Utah Uniform Securities Act.
The first one is registration. So if securities –-any offer
of a security needs to be registered with Federal Government or
with the State.
MR. HOLJE: Judge, I’m going to object on relevance at
this point. I mean, he’s charged with securities fraud. I
think for purposes of today we don’t need the academic lecture
here on this.
THE COURT: You’re satisfied that at least the charging
document, the Information charging securities fraud, that that
definition –-or the alleged actions here would fall within
MR. HOLJE: The alleged acts, your Honor.
THE COURT: All right, thank you.
MR. LYON: Okay, and I don’t want to –-I know it’s
already a quarter after 5, I’m sure everyone’s having a good
time, but I will try to move us along.
MR. HOLJE: So that I’m –-and so that we’re clear, I’m
not admitting the definition of the security here. I’m just,
you know. What I’m saying is we can look at the statute
ourselves and see how security is defined.
MR. LYON: Okay.
THE COURT: But for purposes of today’s hearing, you
don’t object to the Court relying on the testimony of this
witness, when he indicates that the alleged actions would
fall within the securities fraud statute subject to your –assuming
it goes onto the time of trial, fleshing that out
and trying to have the Court or the trier of fact, a jury,
make a determination as to whether it actually falls within
MR. HOLJE: Right, and I think he’s told us that a
security is a stock, a bond, a note, I mean, an investment
contract. Those are all statutory. We can look at those and
see. So it’s –
THE COURT: Okay. I think for purposes of this hearing
today then we’ve probably gone far enough, Mr. Lyon, unless you
think there’s a couple more questions you need to ask.
MR. LYON: No. I mean, ultimately that’s –-well, let
me be quick here, real fast, your Honor. I do have just a few
THE COURT: Go ahead.
Q. BY MR. LYON: You understand that for purposes of
today’s hearing only, we’re acknowledging that these three
transactions that took place fall within the parameters of a
security. So we don’t need to whether –-concern ourselves
whether they are or not –MR.
HOLJE: Judge, I may have confused everybody here.
I apologize. I’m not saying that we admit that what took place
here, even for today’s purposes, falls within security. I’m
just saying this witness is sort of testifying about where we
can find securities and how they’re regulated and –
THE COURT: Well, Counsel, I think it’s the burden of
the State, if he’s going to in fact prove up his Information,
that we’ve got to have some definition of securities for the
Court to make a determination that the alleged actions fell
within the securities fraud statute. So I mean –
MR. HOLJE: I agree with that, and all I’m saying is I
just don’t want to read through Title 61 here, you know. We
know that’s in there, but –
THE COURT: Okay, you just ask him a few clarifying
questions, will you –
MR. LYON: I will.
THE COURT: –that will get us where we need to be as
far as the limited scope that we’re trying to fit within here.
MR. LYON: Okay, and I do want to move things along.
just want to make sure I’m laying adequate foundation for the
THE COURT: Sure.
Q. BY MR. LYON: Okay, my train of thought is derailed. We
have talked about what a security is and why they’re regulated.
Could you tell us where primarily it is –-the focus of the
regulation is within the code? I mean, we’re –-it’s located
within 61-1; is that correct? At least part, in part.
A. That’s the anti-fraud provision of the code, yes.
Q. Okay, now under that section of the code are there
any responsibilities and obligations placed upon an individual
who is selling a security as far as disclosures go?
Q. Okay, could you tell us about those.
A. Well, specifically you can look at subsection (2)
of 61-1-1 where it states that during an offer an individual
makes any untrue statement of material fact, or omits to state
a material fact, in order to make the statements made in the
light of the circumstances under which they’re made not misleading.
Under that provision, if an individual is offering a
security, yes, they need to state material facts. In other
words, good disclosures. If they fail to give or omit those
disclosures, then they violate that subsection.
Q. Okay, and you’ve heard the testimony today of these
Q. Okay, are there any disclosures that should have been
given –-well, before we get there, let me just ask you, you
have heard –-you’ve had a chance to review the file regarding
A. Yes, I have.
Q. Heard the testimony today by these three witnesses?
A. Yes, I have.
Q. Do you have an opinion as to whether –-let’s start
with Mr. Cluff –-whether the investment made by Mr. Cluff,
whether that was a security?
A. In my opinion, yes, that was a security transaction.
Q. Could you tell us why?
A. Well, in the initial offer it looks as if Mr. Esquivel
was offering a stock or a share of a company in that initial
offer. By definition, as we mentioned earlier, under statute,
a stock is a security, and share of a company is a security, so
long as it has the characteristics of a stock.
With the official transaction I guess you could say
while he was offered a stock it looks like what he actually
received was a promissory note. “He” being Mr. Cluff. Looks
like he received a promissory note under the code. A note is
presumed –-and under case law a note a presumed to be a
Q. Okay, and understanding the presumptions that applied,
do you still believe that this –-that the note that was given
to Mr. Cluff is a security?
A. In my opinion, yes, it’s likely a security.
Q. Okay, can you tell us why?
A. Well, under–-when analyzing a note, as I said before,
under the Reeves’ test a note is presumed to be a security.
There are seven categories of non-securities. If a security –or
excuse me, a promissory note does not fall on its face in
one of those categories, you then apply what’s called a “family
In my opinion the promissory note did not fall in
any of those seven categories. So the next step would be to
look at the four factors of the family resemblance test, which
would indicate does it look like it falls into one of those
A. Those factors –Q.
You’re talking about –-when you say “the four
factors,” this is essentially the Reeves’ test that was
commonly referred to?
A. The Reeves’ test or family resemblance test.
Q. Okay, can you just go through those four factors?
A. Sure. The first one is the expectation of the seller
and the buyer. In looking in this transaction, it looks like
the expectation of the seller and the buyer was that it was an
The second factor is the plan of distribution. In
this case it’s a little different, a little difficult to pinpoint
that. In my opinion it does not look like there was a
plan of distribution. You could argue that it could be open to
anybody, or it was specific to these individuals. So I don’t
know that that’s applicable in this case, in my opinion.
A. The third factor would be the expectation of the
public as to whether or not the transaction was an investment.
In my opinion the public would deem this as an investment.
A. Because it had the characteristics of an investment.
There was an expectation of profit, there was furnishing value
with the expectation of profit. There was no consumer nature
to this. It looks like an investment.
Q. Okay, tell us about the fourth factor.
A. The fourth factor involves any risk reducing factors,
which would include a regulatory scheme or collateral –-or
collateral for the investment.
Q. Is there any sort of regulatory scheme?
A. It doesn’t look like it. In reviewing the promissory
note, there is no regulatory scheme attached.
Q. What would be a regulatory scheme?
A. Oh, for example, if it were –-a CD is regulated by
the FDIC. There’s another entity regulating that to ensure
the investor –-in other words, to protect the investor. There
is no protection here for the investor by another regulatory
agency, nor was the note collateralized. So those are three
out of –-given three out of the four factors. Missing one is
not dispositive; so in my opinion it’s likely to be a security.
Q. Now, you heard the testimony of Mr. Cluff as to the
events that led up to the first investment of $4,000, and then
a subsequent investment of 2,000 and a title to his vehicle and
whatnot. During all of this interaction with the defendant and
Mr. Cluff, were there any –-was there any information that
should have been revealed to Mr. Cluff by the defendant but
A. Well, material information, yes.
Q. Such as?
A. Financial statement of X-Tagged in its business operations,
its track record to other investors if it had other
investors, certainly the judgments against Mr. Esquivel should
have been disclosed, in my opinion.
Q. What about the patent information?
A. That would have been a misstatement, in light of the
evidence that I’ve seen. By stating that there was a patent
pending or in the works, and then as the investigation showed
that that was not true, that would be considered a misstatement
rather than a disclosure.
Q. Okay, so we’re breaking into two different categories
as far as omissions.
Q. You’re talking omissions he should have disclosed
financial records and specifically the fact that he has three
Q. Okay, and as far as misstatements, what would you put
in that category?
A. Well, the patent.
A. Stating that there was a patent, and if I could review
A. Is that okay? Okay. I think as far as provable
misstatements, I think the patent would be the large one in
this –-in that transaction.
Q. Okay, let’s talk about now Mr. Engelbrecht. You’ve –you’ve
heard the testimony of Mr. Engelbrecht, and also had a
chance to read the file regarding this. Do you have an opinion
as to whether the investment made by Mr. Engelbrecht was a
A. Yes, I do.
Q. And the opinion is?
A. I think it’s very similar to Mr. Cluff’s. Sounds like
the same transaction. The offer seemed to be a stock, and the
sale seemed to be a promissory note, which both are securities.
Q. Just so we’re clear, you’re breaking this down into
two separate analysis, essentially, because the –-if I’m
understanding you correctly, there’s discussion about stock,
but when it’s memorialized in writing it’s a promissory note.
Are you –-is it your testimony that both of these would fall
within the parameters of a security?
A. Yes, under 61-1-1 it talks about in connection with
the offer or sale of a security. Because there are different
securities, there are different products –I should say
different products here. That’s why I’ve broken them up into
two. Seems to have a different product with the offer than
with the sale.
Q. Okay, given the events leading up to the investment
by Mr. Engelbrecht, were there any disclosures that should have
been made known unto Mr. Engelbrecht that were not?
A. Yes, financial statements, the civil judgments that
were pending. Also there were statements made as to the value
of the stock, which under Hanley, Hanley vs. SEC it states that
in order for an offerer to recommend a security, there needs
to be a reasonable basis for recommending the security.
In my opinion some of the –-some of the statements
made about a stock being worth $1 one day and then soon growing
to $500 per share, in order to make that a reasonable statement
there needs to be some disclosure as to how that’s going to
happen. So in my opinion that would be a disclosure issue as
well, explaining how it jumps from $1 to $500.
Q. Were there any misstatements that occurred?
A. May I review my notes?
A. Yes, the statement about the DMV having a working
relationship with X-Tagged and then the subsequent verification
that that was false, that would be a misstatement. Also, again
the patent. Also the statement that there’s no risk in the
Again, going back to (Inaudible), there needs to be
a reasonable basis for making a statement, and the statement
that there’s no risk in an investment, especially a high yield
investment like this one, there needs to be a reasonable basis
for making that statement. I did not see one in the evidence,
and it does not appear that Mr. Esquivel gave Mr. Engelbrecht
a reasonable justification for making that statement. So I
would –-in my opinion that would be a misstatement as well.
Q. When we’re looking at the required parameters for
disclosure, is it necessary for the defendant to have explained
what was being done, what had been done, or how X-Tagged was
going to become a public company?
A. Yes. In light of the statements made about X-Tagged,
and the success it was going to have, the interest from Google,
Facebook, MySpace, in order to make those reasonable statements
there needed to be some sort of explanation to make the statements
Q. Now, let’s move onto Mr. Butcher. You’ve had a chance
to review the file regarding Mr. Butcher?
A. I have.
Q. You’ve heard his testimony here today?
Q. Do you have an opinion whether the investment made by
Mr. Butcher is a security?
A. Yes, it looks like Mr. Butcher received a stock.
Q. Were there any diclosures that should have been made
to Mr. Butcher that were not?
A. Yes, the financial statements, the civil judgments,
also there are risk disclosures, although I did just get
through saying that saying there’s no risk is a misstatement.
Also the failure to disclose risks is an omission of material
Q. So if there was no conversation between Mr. Butcher
and Mr. Esquivel as to the risk, that would be an omission?
A. Also, again, the statements –-well, as far as the
disclosures, yes, there needed to be disclosures as to how the
investment was going to succeed.
Q. The –-are there any misstatements that were made?
A. If I can review my notes, please. That the DMV was
onboard, as Mr. –-as Mr. Butcher characterized. Also the
worth of this stock. I think again going back to making the
statement reasonable, the fact that Mr. Esquivel made a statement
that a half percent of a company was worth $50,000, but he
was willing to sell that to Mr. Butcher for $5,000, I believe
it was –-or excuse me, 2,500. No, it was 5,000 –-5,000 for
a share that was worth $50,000, I think in order to make that
statement reasonable, there needed to be some sort of explanation.
Q. What about the statement regarding the patent of
X-Tagged, where would that fall?
A. That would be a misstatement, in light of the investigation
showing that there was no patent.
MR. LYON: Okay, I’ve got nothing further.
THE COURT: Thank you. Counsel.
MR. HOLJE: Just a few questions, your Honor.
BY MR. HOLJE:
Q. So Mr. Brady, just so that we’re clear, there are
statutory –-securities are statutorily enumerated to an
extent; is that correct?
Q. In other words, a stock is a security, a bond is a
security, a note is a security?
Q. What we’re talking about in this case, at least with
respect to two of the alleged victims is –-are –-just totally
lost my train of thought –-the promissory notes, the convertible
promissory notes; is that right?
Q. A convertible promissory note is different from a
traditional note, correct?
A. I guess you could say that, yes.
Q. In other words, a convertible promissory note gives
somebody an opportunity to convert what is otherwise a note
into stock; is that accurate?
Q. Okay, so to your knowledge is convertible –-specifically
a convertible promissory note listed anywhere in the regulatory
scheme of Utah?
A. No, it’s broadly defined as simply “note.”
Q. Okay, and is it your testimony that the term “note”
encompasses a convertible promissory note?
A. If it passed the family resemblance test of the
Reeves’ test, yes, that would be my testimony.
Q. Okay, so it’s not an automatic thing. There’s this
analysis that needs to take place, right?
A. Yes, it needs to be a substance over form issue.
Q. Okay. Right. Okay, and in this particular case, at
least with respect to those that Counsel that are talking about
convertible promissory notes, there was no stock issued at any
point, right, or no stock given to them?
A. Officially –-with the first two?
Q. In other words –-so we need to make the record clear.
With respect to Mr. Cluff, then Mr. Engelbrecht, they never
received any stock, right?
A. It looks like in reviewing the file they received a
receipt indicating that they own shares. I don’t know that
they received any stock certificates officially.
Q. Right, okay.
A. If that’s what you’re asking.
Q. That is what I’m asking; and essentially, I mean, is
it fair to say they have a piece of paper saying that if they
want shares of stock they can get them, but that’s about it,
right? Is that –A.
Yes, and no. With –-as far as the promissory note is
concerned, yes, that’s correct, but a securities transaction
does not need to be in writing. It can be an oral agreement.
Q. Okay, and so are you relying on what –-we broke this
down into a dichotomy of sale versus –-or offer versus sale.
Are you relying on the offer when you give your opinion that
they were offered stocks?
Q. Okay, that’s not based on the fact that they received
a convertible promissory note; it’s based on the fact that the
word “share” was used or something like that, or –A.
To clarify, you’re still talking about the first two–Q.
Yes, I am. Yeah.
A. Yes, based on the statements, the oral statements
made during the offer of a security, by the description or
Mr. Esquivel, my opinion of what he sold them was a stock.
Q. Okay, and your opinion is essentially aside from –your
opinion is not reliant on the convertible promissory note,
it sounds like, at least not exclusively?
A. Not with the offer. With the actual sale, yes.
Q. Right, okay. All right. I’m just –-I’m not trying
to confuse you. I’m trying to wrap my brain around this. You
said your opinion was that yes, it’s a security. With respect
to Engelbrecht and Cluff, your opinion was that it was a stock.
I’m just trying to figure out why you had that opinion. It’s
not based solely on the convertible promissory note. It takes
into account other factors.
A. Yes, and if you’d like I can explain why I think it’s
Q. That actually might be helpful, yeah.
A. Okay, again, there needs to be a substance over form.
Although with a category like stocks and notes, it’s more cut
and dry; but with a stock, so long as the product that’s sold
has the characteristics of a stock it is considered a security.
Q. Okay, the family resemblance test, right?
A. No, no, that would be –-family resemblance relates to
the promissory note or to any note.
A. A stock, if –-in order to look at the characteristics
of a stock, they’re typical –-there are usually five or six,
I believe. There’s whether or not there are voting rights;
dividends; whether it’s negotiable, meaning you can transfer
it, it’s transferrable; and whether or not there’s an appreciation
in value. If it carries those characteristics then it’s
likely a stock.
In looking in this case, judging by what Mr. Esquivel
was offering, in my opinion the stock offered was a security,
based on those characteristics.
Q. Okay, but the convertible promissory note that they
were actually given didn’t specify any of those things, right?
In fact, it said the opposite; no voting rights were given,
and that, you know, transferability and all those issues were
addressed in that; isn’t that accurate?
A. Yes, and therefore with the promissory notes you would
take a different analysis and view them as a note.
Q. Okay, so you’re –-you’re not looking at the two
together. You’re saying, “Hey, we have a stock here,” just
because at that point it meets the definition regardless of
what happened afterwards with the promissory note?
A. Well, I would say in my opinion Mr. Esquivel offered
one type of security, offered one security –Q.
A. –-and sold a different security.
Q. Okay, and the fact that it was offered, that’s where
you’re saying fraud comes in, right?
A. Well, I’d say fraud comes in on both the offer and the
Q. Okay. You went through –-I don’t want to get too
bogged down in this family resemblance test here, but –A.
Q. –-isn’t one of the considerations the managerial
efforts that are made by individuals involved in the company
A. What you’re talking about is a passive investor.
Q. What I’m asking is, does it matter that Ryan Butcher
was the Utah representative, and that he put in efforts to
direct his company?
A. Okay, I think I know what you’re asking.
Q. Oh, and frankly, Kyle Cluff, as well, admitted to
being an owner of it, suggesting ideas on the direction of the
company. Those are relevant considerations, aren’t they?
A. They are if you’re using an investment contract
analysis. Under the investment –-to determine whether or
not a transaction or a product is a security as an investment
contract, you use what’s called a “Risk Capital Test,” which
looks at four factors.
One of them is what you’re talking about. One is
furnishing value; two, with the expectation of profit; three,
subject to the risk of the enterprise; and four, does the
investor receive actual or practical control of the enterprise?
Q. Okay, so you’re saying that is specific to investment
A. The way you’re describing it, yes.
Q. Okay, and it doesn’t factor into notes or stocks?
A. That particular prong is for the investment contract
analysis. It wouldn’t provide the note analysis.
MR. HOLJE: Okay. Okay, I think that’s all the
questions I have, your Honor, your Honor.
THE COURT: Thank you. Anything else?
MR. LYON: (Inaudible).
THE COURT: Thank you, Mr. Brady. Appreciate it very
MR. LYON: The State rests, your Honor.
THE COURT: Counsel, do you anticipate calling any
MR. HOLJE: No, I don’t, your Honor.
THE COURT: Do you feel a need to argue anything?
MR. HOLJE: I can do it very briefly.
THE COURT: Okay.
MR. HOLJE: Judge, with respect to Count No. I, that
alleges an amount of $10,000 or more. That is specific to
Mr. Cluff, Kyle Cluff. The State is alleging that it’s over
the $10,000 threshold based on an initial $4,000 check, a
subsequent $2,000 check, and then a credit that was given by
Mr. Esquivel just to be a nice guy, apparently, or whatever,
for a diet plan that was made. He was, you know, he was an
employee of the gym and was apparently helping him learn how
to eat right.
So Mr. Esquivel on his own says, “Okay, we’ll give you
a $2,000 credit for the diet plan. In addition, another $2,000
is credited based on a title to a ten-year-old car. In 2008 –in
2008 it’s a 1998 Chevy Cavalier. So a ten-year-old car that
by his own admission is inoperable, and again $2,000 seems to
be just kind of pulled out of thin air. You know, there’s no
evidence presented about the actual value of this 1998 Chevy
I would suggest that a ten-year-old car that’s inoperable
in a Chevy particularly is not worth $2,000. That’s just
a number that was arrived at by Mr. Esquivel. Same with the
diet plan. Mr. Cluff told us there were no receipts given,
there were no –-it wasn’t invoiced. It was just a number that
they pulled out.
So in actuality what you have here is $6,000 being
given. The rest I would say are just credits that should not
be deemed sufficient for purposes of the $10,000 threshold.
That would make it a third –-that would make Count I a third-
degree felony, not a second degree felony.
THE COURT: Okay.
MR. HOLJE: I’ll submit on that basis, Judge.
THE COURT: Thank you. Let me first indicate for
Mr. Esquivel’s purpose and for anyone in the courtroom, I
think that both lawyers in this case understand that in
preliminary hearings it’s not the –-the Court doesn’t have
the opportunity to weigh the evidence, and has to take the
evidence in the light most favorable to the State.
So specifically, Mr. Esquivel, as it pertains to
your lawyer’s arguments regarding the value of the vehicle
and the value of the diet plan, the fact is there was evidence
presented that those were the values; 2,000, 2,000, $6,000
cash. So the Court takes that as –-as to be true in this
particular case, because I can’t weigh the evidence. It’s been
presented, and I take the evidence in the light most favorable
to the State.
So given that premise, let me back up, then, and
say based on the testimony of the witnesses, the documentary
evidence that I’ve received, that the Court finds probable
cause to believe that there were crimes committed in this
particular case by Mr. Esquivel; and they were as follows:
Count I, the Court finds that there was the crime
of securities fraud, a second-degree felony, committed in this
case. Probable cause to believe that it was been committed
by Mr. Esquivel, and specifically the $10,000 or more value
would apply to Mr. Cluff. So even though he’s not named in
this information, the Court believes that count would follow
The Court also finds probable cause to believe that
the crime in Count II, securities fraud, a third-degree felony,
was committed; and Count III, securities fraud, a third-degree
fraud, was committed as well. I’m not going to attach a victim
to either one of those, but we have two victims that basically
it appears to the Court after having heard the evidence that
each of those victims would be identified with one of these
So I’ll find that it’s appropriate to bind this over
to the trial Court, which in this case is Judge –
MR. LYON: Connors, your Honor.
THE COURT: –-Connors. How far out do you want to go?
MR. HOLJE: A couple of months, maybe?
MR. LYON: Let’s go –-this is just for arraignment.
MR. HOLJE: Oh, yeah, let’s just –-sorry, I thought
you sere setting the trial date as well, Judge.
THE COURT: No, no, no, no. So –
MR. HOLJE: We can –
THE COURT: –-arraignment.
MR. HOLJE: –-go just a couple –
THE COURT: Judge Connors holds his on Wednesday
mornings at 8:30.
MR. LYON: Tuesday.
COURT CLERK: Tuesday mornings.
THE COURT: At what?
MR. LYON: Tuesday mornings.
THE COURT: Tuesdays, excuse me. Thank you for keeping
me straight. Probably one other thing I ought to indicate for
the record that as Mr. Lyon indicated, securities is not one of
the areas that we normally get involved with. I was, however,
satisfied after having reviewed the statute and heard the
testimony of the expert witnesses, that at least there was
sufficient evidence presented that the Court could find
probable cause that these alleged incidents were in fact
a security transaction on each one of the three counts, and
therefore the violation occurred.
So have you got a date?
MR. HOLJE: Just a few weeks out is fine.
COURT CLERK: On the 3 or the 10 of April?
MR. HOLJE: I’m in Duchesne on the 3 rd. If we could go
to the 10 , please.
THE COURT: Mr. Lyon, do you want your exhibits?
MR. LYON: Yeah, do you mind if I withdraw them, or do
you want to leave them in?
MR. HOLJE: No, I don’t care.
THE COURT: I’ll allow you to withdraw your exhibits.
MR. HOLJE: Your Honor, this is kind of a weird request.
I’ve done it in the past, but he’s a –-he’s a resident of
Colorado. At least that’s where he’s at right now. He’s
making quite a bit of travel plans to get here each time for
Court. Is there any way to waive his personal appearance at
that arraignment, and you know, we’ll know –
THE COURT: Well, if that’s all we’re going to do is an
arraignment, we can do one of two things. We either waive his
appearance and you appear on his behalf, or I could actually
arraign him today, and then we set it for pretrial down the
road once you’ve had an opportunity to prepare. Let’s don’t –
MR. LYON: We can do that right now.
MR. HOLJE: Why don’t we do that, yeah. He’ll enter
pleas of not guilty right now, your Honor, and that might be
cleaner way. I apologize for not suggesting that sooner.
THE COURT: Well, let’s do this, then. Setting on
behalf of Judge Connors, and this case having been bound over
by the Magistrate, we’re here on an arraignment, Mr. Esquivel.
Counsel, Mr. Esquivel has a copy of the Information?
MR. HOLJE: Yes, he does.
THE COURT: He understands each of the counts?
MR. HOLJE: Yes.
THE COURT: Would you waive the reading of the Information,
MR. HOLJE: We’ll waive a formal reading of that, your
THE COURT: All right, and you anticipate that he’s
going to enter –
MR. HOLJE: Not guilty pleas today.
THE COURT: –-not guilty pleas.
MR. HOLJE: Yes, your Honor.
THE COURT: All right. Given that, I will arraign
Mr. Esquivel on these three counts, and enter a not guilty
plea on each of the three counts, and we’ll send it then to
Judge Connors for a pretrial conference. Now, you tell me
how far out that you want to go, that you think you can
(Counsel confer off the record)
MR. HOLJE: Something approximately a month down the
road, your Honor.
THE COURT: Okay, do you have a calendar? Do you want
MR. HOLJE: Yeah, if we could –
THE COURT: –-do you want to tell me when you want to
MR. HOLJE: Is there –
THE COURT: Tuesdays at 8:30.
MR. HOLJE: Okay. Okay, let’s go the 24 , if that’s
THE COURT: That’s fine, isn’t it?
MR. LYON: That’s agreeable to the State, your Honor.
COURT CLERK: Is that April 24 ?
MR. HOLJE: Yeah.
THE COURT: Tuesday, April 24 th at 8:30 a.m. Judge
Connors is in courtroom No. 5. Thank you all very much.
MR. HOLJE: Thank you.
THE COURT: Court will be in recess. Thanks, Diane.
MR. LYON: Thank you for staying late.
STATE OF UTAH )
COUNTY OF UTAH )
I, Wendy Haws, a Notary Public in and for the State of
Utah, do hereby certify:
That this proceeding was transcribed under my direction
from the transmitter records made of these meetings.
That I have been authorized by Beverly Lowe to prepare
said transcript, as an independent contractor working under
her court reporter’s license, appropriately authorized under
That this transcript is full, true, correct, and contains
all of the evidence and all matters to which the same related
which were audible through said recording.
I further certify that I am not interested in the outcome
That certain parties were not identified in the record, and
therefore, the name associated with the statement may not be
the correct name as to the speaker.
WITNESS MY HAND AND SEAL this 21 st day of July 2012.
My commission expires:
January 12, 2016
Wendy Haws, CCT
Residing in Utah County
Beverly Lowe, CCR/CCT
Posted on July 18, 2012 in Andy's Threats Trial Updates Xtagged
In a development which is routine for court cases of this kind but sure to be annoying for Andy Esquivel, the court has ordered Andy to hand over a comprehensive list (and copies) of all the documents he intends to use as defense evidence at trial, a list of all witnesses, their relationship to him, their contact information, a full accounting of any financial compensation they are receiving in exchange for their testimony, a list of all expert witnesses, their credentials, copies and photographs of all exhibits, and a detailed explanation of their pertinence to the case…or to provide proof that he is in fact insane.
Andy has been bragging ever since he was indicted that he had mountains of evidence which would prove him innocent and that he would bring an army of witnesses with him to trial. He must now provide the court with a full list of such or he will be forbidden from using any of them at trial.
A copy of the court order can be found here [PDF] and a as always a detailed update of the case and it’s status can be found here [PDF].
Posted on June 28, 2012 in Uncategorized
Andy Esquivel is now hiding from the Colorado Office of Recovery Services (ORS) like an escaped fugitive. He’s trying to avoid paying over $18,000 in back child support for two of his six kids. Colorado ORS has attempted to pick him up at his house, but his mother lied to them and said he’s now living back in Utah…they’ll be back.
If they can’t capture Andy at his home, then they’ll pick him up when he appears for his pre-trial in August. The arm of the law is long Andy – you cannot get away. 🙂
Posted on June 23, 2012 in Andy's Threats Trial Updates
Here’s a post from Andy’s website. It’s from sometime last year when he was bragging about Ron Yengich taking his case. I just thought it was sort-of funny in light of the fact that now Andy is representing himself. I guess this wasn’t all my “manipulation” after all. Sometimes the truth hurts.
Daryl blogged in video above “(Note:Andy doesn’t have an attorney and refuses to use the public defender assigned to him)” – (I wonder why?)
Now the truth: Allen Brady got Ron J, Yengich & he did take my case, but his fee is double what Ryion, Kyle and Chris put into the company! So if we have been trying to give these men back their money for 18 months just as Shar Jenkins paid $2,500 back to Logan Laws Sept,14, 2009. Why should we pay so much when we are innocent. Instead we will wait for ‘preliminary hearing’ Oct,26,2011 then all Xtagged, Steve, Allen, Shar, John, Jake and more witnesses and our evidence will be presented to the Judge if then & only then this proceeds forward to full trial then Ron J, Yengich will be retained. (Money has nothing to do with it! That’s just Daryl’s manipulation as usual.
Call Allen Brady 801.XXX.XXXX he can verify everything…
Posted on June 22, 2012 in Trial Updates
On Tuesday, June 19th, 2012, Judge David Connors set a date for the trial of Andres “Andy” Esquivel (aka – Chicho) for Wednesday, Octber 24th, through Friday, October 26th, of 2012. There will be a three (3) day jury trial of Andy Esquivel preceded buy a pre-trial hearing on August 14th. Andy will represent himself at trial.
As always an update of the current status of the case can be found here [PDF].
In related news, Andy Esquivel’s psychotic convicted felon mother called his family this week saying that several of Andy’s cousins will be going to jail for posting and liking a link to this website on Facebook. She claimed that the prosecutor in Andy’s fraud trial on Tuesday decided to drop the charges against Andy and instead file charges against them and everyone associated with this website. This was obviously a complete falsehood.
First of all, the first amendment is pretty clear about freedom of speech, and Colorado law is even more strict than the first amendment. Second, slander isn’t a criminal offense, and cannot therefore be punished by time in prison. Third, if a civil action were brought, it would be in the state of the accused. Fourth, any civil action would be outside the scope of action of the prosecutor in Andy’s fraud trial. Fifth, everything posted on this website is a matter of public record and is therefore not only true, but protected by the Freedom of Information act and the first amendment. Finally, Andy Esquivel has been threatening to have his accusers and those of us who have exposed his various scams thrown in jail for years with no effect. The fact that he’s still throwing out hollow threats and even recruiting his crazy mother to help shows how desperate he is.
Andy Esquivel is a sad little man. He’s got six kids by three different mothers, owes back child support on two, lost a third because of neglect, and will probably be in prison when the 6th is born. He preaches about God, but never has the world seen a more godless individual. The only thing we as a society can do is to pray for his soul and hope that he learns his lesson in prison.
Posted on June 22, 2012 in Andy's Videos
Here’s the latest video from the morons who follow Andy Esquivel from state to state. It’s absolutely HILARIOUS!!!
The basic premise of this video, if you watch the whole thing, is that Andy started a club called “Phe Playground” back in 2007 or something. The club was perfect for Xtagged because you could look out it’s windows and see people’s license plate numbers as they arrived (in the dark). My wife and I supposedly went to this club because I was a part of Xtagged (never paying a cover) and then I was supposedly “fired” form Xtagged by Allen Brady in 2007 never to return. Andy had great times running Playground and it had tremendous potential, but I (Daryl Acumen) had it shut down. Now that Shar Jenkins has gone to the Utah SEC (Actually the Utah Department of Securities) and told them the truth, the securities fraud case against Andy is in the toilet and Xtagged and Playground will be returning to Utah! People will fly from miles around to see the new club and Andy and Shar will be famous.
The TRUTH is much different.
Playground started life as Suede, a great Jazz club in Park City. When Suede finally closed it’s doors after years in business, a couple of guys bought the lease and the liquor license with money loaned to them by their mother. The club was actually pretty cool, but never really took off. Early on, Andy Esquivel approached the new owners about Xtagged and said he was going to hold all sorts of huge Xtagged events in the venue to drive traffic. About this time same Andy approached me about having my website PartyUtah.com promote Xtagged and the Xtagged events. Even thought I didn’t think much of Xtagged (or Andy), I agreed because it would give me an excuse to meet the owners of the new Playground.
I went to the Playground twice. The first time was just to look around and to meet the owners. I guess Andy conned the owners into thinking I was somehow connected with him because he got really upset when I talked to them about my website on my own, saying I “embarrassed him” because he’d already hooked me up. I told Andy very plainly that although I appreciated the introduction, NOBODY represented PartyUtah.com but me and I would not under any circumstances allow him to “negotiate” some sort of relationship with a club on my behalf or allow him to interfere with my efforts to reach out to club owners.
The second event was supposed to be a big Xtagged party, but was in fact a complete bust. Andy bragged that he’d bought a dozen big screen TVs for the club, which I found suspicious, and brought one from home as an example. He had three or four friends in that night, but otherwise it was dead. At the back bar I remember most vividly being approached by Allen Brady, who confided that he was beginning to think Andy was a “fraud” and completely full of crap. I agreed, but didn’t say so publicly. All I said in reply that sometimes startups feel like cons in the beginning and that I was sure everything would work out just fine. I then spent some time talkign to DJ Panama and left when it was obvious that nobody would be showing up. This was the ONLY time I ever talked to Allen Brady about Xtagged at Playground. The idea that he somehow “fired” me from Xtagged that or any other night is ridiculous, since I already had a job and would NEVER have agreed to “sign up” for a venture like Xtagged to begin with (even if I didn’t suspect that it was a scam).
I never went to Playground again because I didn’t see a reason to. Photographer Eric Hamilton shot an event with Tommy Lee at the club a few months later and licensed the photos to Party Utah, but he later confessed that Andy had talked him into shooting for free in exchange for shares in his fake company. Somewhere in there Andy claims to have conned the owners of Playground into giving him 10% ownership of the club in exchange for a percentage of Xtagged. The terms of the agreement change depending on what year you ask Andy about the transaction – at one point he claimed to have given the owners of Playground exclusive rights to Xtagged in Utah, which of course he’d already sold to Club Bogeys in Ogden.
Playground lasted less than a year. They didn’t even survive long enough or make enough money to remove the “Suede” logo from the floor at the club’s entrance. It was a nice place with potential, but Park City is a tough market and most club owners in Utah over-estimate the revenue potential of their ventures and burn out before they really reach their stride.
The idea (blurted out in this video by Shar Jenkins as if it was an obvious fact) that I had something to do with Playground failing is ridiculous. The idea that Andy Esquivel could re-open the club is even more so! The DABC isn’t giving out new liquor licenses right now, and they CERTAINLY wouldn’t give a license to a convicted felon who’s on trial for securities fraud. Even if Andy COULD get a liquor license in Utah, he’s so broke that he could never afford the lease, much less the utilities and improvements required to open a club – he probably couldn’t even come up with the cash for the door cover without help from one of his brainless minions. If you want proof, look what happened to Andy’s crappy little attic office in Denver.
The new legal name of Xtagged is ‘111701135’ and it’s CEO is about to get a number of his own. My advice to Andy is to either take a plea bargain now, or prepare for a very long stay in Davis County Utah.
Posted on June 22, 2012 in Andy's Videos
Here are Andy’s newest videos. These brainless rants were forwarded to so called “supporters” over the last few weeks and came to us because of a ‘fatal flaw’ in Digital Internet DNA technology which we were able to discover with the help of friends we have inside the CIA.
The first video is Andy Esquivel showing off many of his very fake products. It’s actually quite hilarious! Among the “inventions” he displays are the ridiculous “car cover” which is really a length of bubble wrap with an orange rope threaded through it. Noticably absent is the black 2012 Hyundai Veloster anti-spy wrap which Andy took a picture of and claimed was a prototype undergoign high-speed testing in Arizona.
Andy also displays an aluminum water bottle with a Buzz/Wiser sticker on it (the only one of it’s kind in the world). Once again absent is a sample ‘case’ of the energy drink which Andy claims to have sold thousands of. Notice how Andy keeps the water bottle in a protective case. This is to protect the only example of this fake energy drink every produced.
Andy also spends some time showing off the Samsung Galaxy tablet he purchased because he couldn’t afford an iPad. This time he doesn’t bother to don the magic fingernail polish however to show off the touchless typing capability.
Finally Andy shows off the e-cigarettes he bought in bulk from China and had private labeled. Again absent are the laser attachments which Andy pretended to have displayed at a grand launch in a casino with the imaginary supporter “Gary Thebus” looking on in amazement.
The second video is Andy trying to explain how a fight in Bountiful (which he plead guilty to disorderly conduct charges for) was actually part of a grand conspiracy theory involving shady characters in the Davis county government, or the FBI or something like that. It’s pretty funny too, especially the part where Andy claims he is too good to pay for his own bail and so was morally compelled to have Ron Kelsay and Alan Brady pay it for him.
Andy’s a pretty funny guy, but even funnier are brainless minions like Alan Brady and Ron Kelsay who follow him around as if he were Jim Jones. Hopefully Andy keeps posting videos like this because they’re helping prove what an idiot he is. Soon felony fraud charges will also show the world what a con he is on top of it.
Posted on June 19, 2012 in Andy Esquivel's Scams Trial Updates Xtagged
This crazy email exchange between Andy Esquivel and his attorney was forwarded to Xtagged “supporters” recently as evidence that Andy was framed.
From: “Karma Cause” <firstname.lastname@example.org>
Date: May 23, 2012 3:38 AM
Subject: Re: Sorry Mr. Holje but we had good reasons.
To: “Michael Holje” <email@example.com>
Cc: “leo” <firstname.lastname@example.org>, “law firm” <email@example.com>, “firstname.lastname@example.org” <email@example.com>, “Steve K” <firstname.lastname@example.org>, “Alll” <email@example.com>, “John Steer” <firstname.lastname@example.org>, “shar” <email@example.com>, “chue berriel” <firstname.lastname@example.org>, “Daris Garner” <email@example.com>, “Jobita B” <firstname.lastname@example.org>
From: Michael Holje <email@example.com>
To: Karma Cause <firstname.lastname@example.org>
Sent: Wednesday, May 16, 2012 10:39 AM
Subject: RE: Shar great job. Relia exposes Daryl on John Richards!
Posted on June 19, 2012 in Andy Esquivel's Scams Andy's Threats Buzz/Wiser Karma Cause Trial Updates Wiser Car Cover Wiser E-Cigarettes Wiser Eyes Xtagged
This crazy, ranting email from Andy Esquivel is as much evidence of drug use as it is evidence that Andy is guilty of everything he’s charged of. No intelligent human being can read through this garbled mess and think anything other than “wow, this man is insane.”
With this email (sent to Xtagged “supporters”) Andy tries to explain in one twisted narrative the conspiracies that have brought him to this point – broke, being sued for $18,000 in back child support, unemployed, and on trial for felony securities fraud. If you can get through even half of this gibberish, you will be impressed with the extent of Andy’s psychosis.
It’s over for Daryl & Ryion this is only one of the emails below from many people that lost out because of these two men, Carlos Martinez SLC promoter Rick from playground has said Daryl manipulated him Constantine from world famous Harryos in park city did even better he told John Steer that Daryl did the same thing to 4 other Utah companies all these people will get there justice and now finally Shar, Cynthia, key, Sylvester etc all of you can stop saying I am crazy for not letting you civilly sue Chris & Kyle along with Daryl and Ryion, I was right about Chris E. so please just be patient please look Chris E. is CC you all need to understand Chris’s Gym promoted Xtagged for 2 years and Kyle called news, companies if it wasn’t for kyle I never would have talked to i-safe.org you all know the video of Johnathon king ex- F.B.I agent with i-safe.org that I told on January 2009 “they are going to try and bring Xtagged down” I told Allen what I was going to do and I said “We only have a few owners at the moment but I will bring more in to protect us, it’s not my fault Kyle brought Ryion in that’s how Daryl found his way in, Taylor was brought in also look at the time frame I brought Taylor in right at that time and Taylor brought in his good friend Jason just look at the time frame as a matter of fact I did not want Ryion I wanted Logan laws because of his father with pro image but Logan only had $2,500 so he partnerd with Ryion! You guys seen the pre-trial video Ryion says “Andy took money from a little boy a kid named Logan Laws” Ryion partnered with that little kid to begin with Ryion is just as manipulative as Daryl Acumen! Xtagged will win guys. When I told Andrew Couch (I have it recorded from 2008) “I could not merge Xtagged because of safety reasons” he got pissed because he wanted money but he could not attack me until Daryl told him about Ryion’s blog May/2009 look click here Daryl used to be with Xtagged 2006 but he got jealous because we was on the news not him so he quit but after the Fox13 interview he tried to come back Allen told him no. Daryl and Andrew Couch then plotted to use Ryion, kyle, and Chris why because Andrew Couch took the system to Mitch Thrower not fully knowing about the flaw in the system that’s why I could not finish patent because they were watching the filings you see patents are a rich mans why of coping your Ideas so if I would have went forward with that same patent I would have had to released the research of the system flaw that’s what busted Andrew Couch look his LinkedIn says past Director of business intelligence at Bump.com and now Mitch Thrower’s LinkedIn follows Allen Brady and John Steer he used to follow me and Steve but they told him I was going to do 15 to 25 years in prison can you blame the guy for unconnecting from our linkedIn Chris E. knows this I sent them a video showing Mitch Thrower was on mine and Steve’s LinkedIn and what did Daryl do manipulate again, Daryl tried to take what was rightfully ours and he is going down I was my own attorney at the beginning of this trial WHY so Daryl would strait up manipulate these guys and say Andy don’t have no money see he blew it all blah blah blah, now he is doing it again “Andy don’t have a lawyer” I have already spent $14,000 on attorney & ten trips to Utah. Why did I take plea in Bountiful to prove a point… Casey the prosecutor in Bountiful did not do a thing about the attempted kidnapping May/2009 where 20 people jumped us three because Casey believed we had hundreds of investor’s and he wanted us ran out of Bountiful, Casey called to see if Xtagged had a license to do business but he only called Utah! Xtagged was out of Wyoming, get it now Casey will look bad. Adam Sweet did not even know about our Wyoming paperwork he pretended he did at pre-trial but what Adam does not know is that Ryion Butcher wants to be a movie star Ryion has a modeling profile that’s how Daryl got to him “will be famous on tv if we bust Andy” but that backfired on Daryl because October 2011 Ryion called Ron our documentary cameraman and gave a phone interview “Ron I like you and I want you to come and film me” Ron then says prove it give me something! Ryion sent him a book written by Becky(Daryl) wait until you all see the book Becky wrote and sent to us a year earlier but that was not it Ryion then tells Ron the cameraman “OK here is the biggest evidence Adam Sweet has on Andy he never registered Xtagged” he did that phone interview Oct of 2011 and then Daryl manipulated Ron past to get Ryion to stop talking! Adam Sweet of the SEC acted like he knew the whole time about Wyoming Xtagged INC but at pretrial if you all watched Adam Sweet pre-trial video you seen Mr.Holje ask Adam who registered Xtagged in Denver Colorado you will see Adam stumble through paper work for a few minutes and nervously say Daryl A, Acumen what you guys don’t know is Allen brady and Steve Klemark and I got a call after our meeting with the SEC Judge because they did not want Adam Sweet in the meeting for him having me arrest for no reason Adam Sweet asked Allen, Steve and I to come back to the SEC office and meet with him we did I said nothing just sat down and recorded the meeting Adam sweet told us “I don’t know a Daryl Acumen” Allen was amazed Allen said “What I told you about Daryl then Adam says I don’t know who you are Allen I only talked to Andy’s attorney Leonard Martinez, Allen told Adam Sweet ‘You called me 5 times asking if I would go against Andy and I said no and you would hang up! Then Steve klemark started in on Adam Sweet, all recorded guys, you see why they don’t want trial. We than came back to Denver and went strait to Leonard Martinez and told him that Adam Sweet said he did not know Daryl Acumen I record Leonard also guys Leonard was amazed and said that’s a lie I told him about Daryl myself. Ryion even told Ron something weird is going on I called Adam Sweet to tell him that you and I have come to an agreement Andy will pay Kyle, Chris and I our money back and I don’t even want interest Ron, remember Ryion wants to be in the documentary Ron says lets get it done I will film me giving you checks but then Ryion says we can’t because the Davis prosecutor said no he won’t allow it Why because if it’s dropped Casey the Bountiful prosecutor is now in trouble ready for this, Mr. Holje and Casey are great friends… I recorded every meeting with Mr. Holje the last one Mr. Holje is yelling at me to take the plea of misdemeanors and no jail time get it (Buddies Casey & Holje) Chris E. got a copy of the email I sent Mr. Holje and the truth is if I would have taken the plea Mr. Holje is right it would not hurt my civil suit against platester/Bump.com and since we let Mr. Jenkins pay these men at court we would not owe them anything everybody wins in his book Casey now can say see he was guilty that’s why Mr. Holje was forcing the plea on me I have a watch cam of all my meetings with Mr. Holje. Karma is my life guys I will prove it now ask Chris E. he got a copy of the email I sent Mr.Holje when I fired him I told him in the email “I can not do that because if I leave Kyle a man that helped me for two years hanging out to dry it will come back on me through karma because Steve, Sylvester, Key, Shar, Cory etc were going to sue them Kyle never should have sent an email that read ” I agree with everything Daryl and Ryion say about Wiser e-cig and the other fake companies with hundreds of investors! He is brain washed guys Kyle even sat down with our patent attorney, so to make this short I fired Mr. Holje to protect Chris and Kyle for my Karma. Now I will return to court representing my self again Why because I have all this evidence on video that’s why Brian Doubleday owns 20% of the movie rights this man is a movie genius he made Instinct that movie gave me so much in life Cuba Gooding JR I believe got an award for that guys I guarantee Brian will get a Pulitzer award for Xtagged movie, Facebook is getting sued Google it they are getting sued for their movie social network because it was 80% lies Xtagged is all on video since 2005 when it was Single & Dating Mr. Doubleday knows all of this look he is CC. Facebook is now in trouble with the SEC and everyone who invested is suing Facebook that’s why I never wanted to sell them pretty certificates that Allen Brady has had the whole time I wanted to hire Melissa Gar, Brian Davis worker you all remember Brian Davis the guy in Bountiful that lived in 1.6 million dollar house on hill next to the temple he sent Melissa Gar to me so they could handle INC, certificates, but then Ryion Butcher told us no don’t do that “I have a marketing degree guys” we all were there when Ryion said this at our sushi shop “I can sell Xtagged products an make us a lot of money” we only believed it because he was Kyle’s friend! The only reason Chris and Kyle don’t have paperwork like Allen Brady, Robert & Kim from playground is because they did not want to pay Jason web Xtagged Inc attorney $310 an hour to draw it up, Allen owned Bus company their lawyer did it for him not for free but you get what I mean Robert & Kim’s club lawyer did theirs. Chris and Kyle used that paperwork because Jason and another attorney emailed it to me
Screen-shots above are emails with Chris and Kyle’s paperwork from Utah Attorneys 02/04/2008! I want trial 100% but I don’t want Kyle and Chris to get in trouble they are manipulated by Daryl Acumen, ask Taylor Jones I asked if he could help save these men I have CC everyone because it’s all true look Taylor is in CC.
All this evidence is at http://www.diigo.com/user/xtagged you can find it on your own and that’s only 10% of evidence Mr. Holje told John Steer he did not want to see his evidence, that sent up red flags because he was helping his friend Casey the Bountiful prosecutor I paid $1,500 total for disorderly conduct! WHAT! “I CALLED THE POLICE GUYS” I am listed as the victim in Bountiful case report I have copy if needed media only they put no one was taken to the hospital John Steer was hit with a pool ball 14 times in the head that’s attempted murder I told Mr. Holje we were kidnapped he said why because they locked you in the store I said no Sir, because it was twenty men on three Why 20 to 3 because they were going to carry us out of there they just couldn’t believe we defended ourselves with 20 against 3, I have a recording of the fight on my old Samsung smart phone, he said let me see it, I said at trial you will he then keep billing me $200 an hour and said your not going to have enough money for the Davis court if you keep this up just take the plea of $300 and six months probation or else this is going to cost thousands, for a Disorderly conduct guys Mr. Superlawer.com ended up costing me $1,500 dollars and still had to plea a disorderly conduct that I never did in short don’t ever call 911 in bountiful because I did and it cost me $1,500 to call the Bountiful police, the men who moved all the furniture to jump us (I have video) that’s called premeditation and they unplugged the stores video cameras and please note the workers of hero’s computers where they jumped us never called 911 I did, it’s funny because Casey the bountiful prosecutor says to this day it was only four guys (I have a video of it) but never the less them four guys got a $300 fine That’s it! I paid $1,500 John Steer paid $180 fine and $5,000 bountiful hospital bill, yes Mr. Holje’s best friend Casey the Bountiful prosecutor showed us scammers and ran us out of town, only problem is we are not scammers and we did have INC, and where are the hundreds of investors we scammed so now what do they do.
Mr. Doubleday Sir, you know theirs to much to fit in this email but I only try to fulfill my Karma and guess what, I have done it now if trial proceeds I have done enough to warn Kyle & Chris here comes trial Sir get ready to film the trial in Utah. FYI the day you heard me out Brian for 5 hours and you did not ask for anything is the day I knew we had the right people for Xtagged movie here is some good news for you Sir, I will prove to you I am not about money rewrite our contract I am going to give your company 30% not 20% of documentary/movie royalties just promise you will tell the world everything Sir, Daryl Acumen used the internet as a weapon against all of us please tell the world. The other 20% is for my Xtagged team and the other 50% of course goes to karmacause.com
Andrew Couch got to see the big time with Mitch Thrower at first, and I almost lost everything but in the time of having nothing I invented so much more, so yes Andrew got to party and celebrate back then but the money clouded his mind and he just peeked… I on the other hand had nothing to cloud my mind and invented Buzz/wiser, Wisertechnology, Facebook apps just go look at www.Wisertechnology.com and see for yourselves that’s why I don’t want money in my account it’s that simple I will draw a salary from Karmacause.org that’s it! After everyone knows the truth they will trust www.Karmacause.org because it puts Digital fingerprints on everything and Steve Klemarks DigitalInternetDna.com will blow you all away that’s why he is CEO of WiserTechnology.com.
I will see you all when I come to Utah June 19th Dre, Zac, Rick Carlos all you guys that have recently email me just like Dre below’ I miss you to bro, none of this is your guys fault you did not abandon Xtagged Daryl is just evil and tried to steal your rightful blessing from God because I don’t know how I did all this all I know is that God does exist because before I could not live without my son Andres and my daughter Savannah ask John Steer he will tell you, my son and daughter was so proud of me in 2007 after Fox13 but now because of Daryl Acumen manipulating them with all these lies I have not seen them for three years… My son sent me an email 2 years ago that read ” You scammer why don’t you invent something that really works” my family says they think my ex wrote it not my son never the less I asked God to please give the strength to keep on inventing and oh boy he answered my prayers just look at us now Xooplay is not scam nothing is and with my prayers answered in full I knew I would see them soon that’s why I want trial over because I miss them dearly I just had to think of all children not just my own. Steve Klemark Denver P.D his father retired N.Y.P.D got so much research from these last two year that now I can say it will benefit our children 100% I just could not say anything, now you can see why… all I ask of you guys is to pray that I get to see Andres & Savannah soon because I don’t care about money just God.
P.s look at the way I write Ok that’s me Rebecca Dunn is the one that wrote all the text for Karmacause.com and Wisertecknology.com that’s a lot from her so please until a real investigation happens and don’t worry a real one is coming the SEC Judge told Allen Brady Aug, 02, 2011 he would start one as soon as Davis county case is over he told Allen that, so please everyone stop telling me that Daryl & Beckie are a Mother son team… Beckie told me that she was going to get Daryl for kicking her out of his home I believe at trial she will make good on that, if not and I am wrong that’s for God to judge not us. look at what I have been living and the proof of that is if we are in court and trial is coming 100% why still run slander/smear campaign to this day. Daryl and Ryion are so desperate they turned www.Xoutscams.com back on why when I am supposedly already caught! This is why, if Daryl and Ryion turn it off well they in a way turn of the brain washing machine right Chris E. you now why I truly fired Mr. Holje that’s why you are connected to all of us now and thank God.
God bless Us All! Dre see you soon…
Posted on June 19, 2012 in Andy's Threats Trial Updates Xtagged
Thank you God, it work guys our DigitalInternetDna.com app worked look at the screen-shots it even traced where it was coming from… And you will not believe what building they tried to hide it from but Digital Internet Dna aka D.I.D caught it all. Steve your Dad in N.Y.P.D bro you and him are going to be famous you did it just as they discovered Dna you discovered Internet Dna get ready this is going to be big!
Check this out it will blow you away;
I told you guys you don’t know everything now it’s time I want you to click link below and click image of the bountiful police report 05/24/2009 I was primary victim…
http://xtagged.blogspot.com/2011/12/lets-disprove-daryl-and-ryion-again.htmlAre you ready click this link below of bountiful police on May, 01, 2009 the police in this video were two of the 20 men that attacked us May, 24, 2009 our police report says no one went to the hospital that’s a lie, I have a video of the whole fight ask John Steer Xtagme@gmail.comhttp://www.abc4.com/news/local/story/EXCLUSIVE-Bountiful-City-settles-taser-lawsuit/KQEAenKQS02dTF8Q9DTQ3w.cspxThat’s why they were trying so hard to make me take the plea bargain of misdemeanors and no jail time they need to make me look bad! I am innocent I invented Xtagged.com and I am not taking plea… Read the two page email I sent earlier about Bountiful prosecutor Casey, SEC’s Adam Sweet & my so called $200 an hr attorney Mr. Holje that I fired and now he marks my email as spam screenshot 3 & 4 be sure to click all links in that email video and screenshot evidence please.I hope you all read the long email of F.B.I 2008 I sent before this one, Xtagged.com is worth billions this will be the biggest internet news story ever.Mr. Holje told me it was childish and dumb that I record everything, I recorded him saying that in court conference room what attorney that you pay $200 an hour would say that!I recorded everything since the beginning of Xtagged and especially now…WWW.KARMACAUSE.INFO
Andres Esquivel KarmaCause CEO:
Sent with my Xraza-phoneConfidential Information – This email is for use by the intended recipient (s) and may contain privileged, confidential or copyrighted information. Unauthorized use, copying or distribution of this e-mail, in whole or in part, is strictly prohibited. If you should not be an intended recipient of this e-mail, please notify the sender by return e-mail and delete this e-mail.
No Contract Formation – This e-mail does not constitute a contract
Posted on June 19, 2012 in Andy's Threats Trial Updates Xtagged
In this email sent to Xtagged “supporters,” Andy Esquivel rails on his own attorney, alleging collusion and misdealing. He continues to claim that his attorney somehow forced him to accept plea deals in Bountiful and American Fork, as if that were possible. He again brags about the law enforcement connections he supposedly has amassed and tries to make his supporters believe that these “connections” will somehow shield him from the criminal charges he now faces.
Ever since we confronted Mr. Holje about Casey the Bountiful prosecutor and him being friends he has had our emails blocked as spam attachment 3&4;
Mr. Holje forced both pleas all you have to do to confirm this is get all court videos/transcripts, Ryion & Daryl told Bountiful prosecutor April, 29, 2009 we had hundreds of investors we scammed that’s why prosecutor had us ran out of Bountiful… As you see it was all a lie and that’s why they tried to force plea on me again for the third time it’s just this time I had to protect Chris & Kyle because I could not show them this stuff back then I was told not to…
Mr. Martinez 303.623.3300 our Denver Attorney since April of 2010 knew all of this the whole time he says this calls for an F.B.I investigation Steve & his Father of N.Y.P.D have went to the F.B.I that why I now dare to release these video they were marked private. Xtagged system is worth billions and in the last email about Adam Sweet from the SEC I showed you how he lied about Daryl Acumen Leonard also confirmed in his video that Adam Sweet was not being truthful.
Now do you get why Mr. Brian Doubleday is producing this movie it’s big we have a meeting with Mark Flores the attorney that sued Bountiful for Bruce Harper he was Xtagged supporter his plate wasn’t crooked he had an Xtagged bumper sticker on his car! They Attacked Bruce May, 2009 and us May of 2009 get it the police was to run Xtagged out of town because Casey Bountiful prosecutor just believed Ryion and Daryl did not check it out now they don’t know what to do…
Posted on June 19, 2012 in Trial Updates Xtagged
From: Karma Cause <email@example.com>
To: “firstname.lastname@example.org” <email@example.com>; “firstname.lastname@example.org” <email@example.com>
Cc: Digital I-D filed <firstname.lastname@example.org>; Brian Doubleday <email@example.com>; Steve K <firstname.lastname@example.org>; Alll <email@example.com>
Sent: Friday, June 15, 2012 5:39 PM
Subject: Fw: Here is one of the emails from my $200 an hr lawyer.
Look at the date it was before pre-trial they made me plea of misdemeanors with no jail & I said no and then Ryion, kyle & Chris committed perjury 22 times we stopped counting at 22 I know their is more, after I posted some of the lies and my attorney video of Leonard Martinez Chris E. one of the plaintiffs had a change of heart and now is connected to Steve Klemarks police LinkedIn and John’s all of us http://www.linkedin.com/in/xrazaWWW.KARMACAUSE.INFO
Andres Esquivel KarmaCause CEO:
Sent with my Xraza-phone
—– Forwarded Message —–
From: Michael Holje <firstname.lastname@example.org>
To: “email@example.com” <firstname.lastname@example.org>
Sent: Tuesday, February 28, 2012 4:31 PM
Subject: confidential email for Andres Esquivel
Andy,Who is Melissa Garr in Ogden, Utah? She is alleging that you, through XTagged, took $100,000 from her.Michael T. HoljeBrown, Bradshaw & Moffat, LLP10 West Broadway, Suite 210Salt Lake City, Utah 84101(801) 532-5297 (tel)(801) 532-5298 (fax)
Posted on June 19, 2012 in Trial Updates Xtagged
Brian I know this is blowing your mind I have attached commitment I signed with you 05/04/2009, please look at the date on email from Microsoft to Klye attachment 3 same day I signed with you all this is happening because Xtagged is worth billions if you watched the Facebook movie The Social Network you will see that even the treasurer of the U.S laughed when he was told Facebook would be worth millions. And know Daryl sent emails to my family saying that they are going to pull my bail on Tuesday I guess they really want to force the plea on meI told my family Daryl just wants them to be scared for me and talk me into taking the plea my family did not know everything about my evidence so ya can’t blame them at all… As you can see Brian Doubleday is CC: and as a movie maker he knows how much that would build the Xtagged movie “Dam it! Andy won’t take the plea lets pull his bail” I would go for my cause in a heart beat, unfortunately my family already has copies of the 22 perjury emails on the plaintiffs and would be knocking on the city hall doors instantly…
It works like this usually the prosecutor will let you sit in jail to force you to take plea, oh and they tried to put me in jail wait until you hear about that! But jail did not work because the other owners of Xtagged and my family bailed me out so they have Daryl start new website Dec, 05, 2011 in Ryions name and turn up the lies to try and force me to take plea unforgivably on their behalf that backfired on them because Steve’s wife tried to commit suicide thinking her husband really scammed hundreds of people for millions of dollars Amanda Klemark 3 days in Denver hospital and when I told Mr. Holje that he did not care I have video of it… That’s why Steve will not talk to anyone now but the Judge if you look at screenshot of Steve’s Facebook where Amanda wrote having a wonderful day because Steve’s father retired N.Y.P.D is back in town Steve does not want to say anything else until he takes the Stand. Allen Brady talked to attorney Mark Flores and was told be careful you could be in danger just last week.
P.s I don’t believe we will get in to Utah early enough to meet with you tomorrow but I will call your office at 1:30pm I can meet with you on Tuesday my court is at 8:30am anytime after that would be great Ron will be filming some more witnesses so I can meet with you anytime Tuesday I have to get back to Denver Wednesday I have two kids that I need to take care of while my mom is at work and my girl is in chief school I wish I could stay longer but my family calls, it was nice speaking with you Mr. Holje would not contact you now I know why! He charges $200 an hour and would not due what I asked him for, for $50 bucks an hour I would call the person daddy and do everything I was asked as long as it was legal happy fathers day see you soon…
Posted on June 11, 2012 in Andy Esquivel's Scams Andy's Videos Buzz/Wiser Karma Cause Ron Kelsay Wiser Car Cover Wiser E-Cigarettes Xtagged
In this video, Andy goes into extensive detail about his side of what’s happened with Xtagged and Wiser Technology over the last several years. It’s an amazing collection of lies and distortions coming straight form the mind of a pathological lying sociopath, but it’s very interesting to watch. Andy even claims he created the Xtagged scam for his twin kids in Utah – the ones he owes over $15,000 in back child-support for.
Every crazy thing Andy has every said is reiterated in this video. This is a pretty good review of what Andt will try to say at the pre-trial hearing on June 19th to save his skin ant probably at trial. The video is over a half an hour and makes you wonder why people like Andy and Steve Klemark are walking the streets instead of locked up in padded cells with lots of medication and professional supervision. This is an example of why the liberalization of out-patient mental health is not necessarily a good thing.
Posted on June 10, 2012 in Trial Updates Xtagged
The judge overseeing the fraud case against Andy Esquivel signed the order releasing Michael Holje as Andy Esquivel’s attorney on Friday. Check the case file update for more details [PDF] or click here for the official court order [PDF]. Now Andy is OFFICIALLY officially on his own for the pre-trial hearing on the 19th. The questions now are (a) does Andy Esquivel have enough evidence or the skill to try this case on his own, (b) does he have the balls to ask for a trial date instead of another ‘extension’ and (c) will he throw himself on the mercy of the court and ask for a public defender to replace Michael Holje? My guess is the answers are No, No, and Yes.
Posted on June 8, 2012 in Trial Updates Xtagged
On June 7th Judge Connors and prosecutor Lyon officially accepted Michael Holje’s motion to be released as Andy Esquivel’s attorney in fraud case#111701135. As of yesterday therefore, Andy Esquivel is officially without legal representation. The question remains whether or not Andy will accept help of a public defender. Odds are he will because he’s too broke to hire another attorney. Of course there’s always the possibility that Andy will try to represent himself with that box full of evidence he claims to have, but I doubt he’s that stupid. Andy knows he’s guilty and representing himself at trial would only hasten the prosecution’s case.
The Pre-trial hearing in in a week and my guess is that Andy will ask for another extension to give him time to think. An accelerated trial would be a disaster for Andy, as he would at minimum be found guilty and be ordered to pay Ryion, Kyle and Chris back in full. As always the full case update can be found here [PDF].
Posted on June 4, 2012 in Trial Updates
If so, then time is running short. Nobody has filed a motion with the court yet to become Andy’s new attorney and the pre-trial hearing is in two weeks. From this side of the fence, Andy’s situation looks pretty bleak. Unless one of the prosecutions witnesses gets hit by a bus or there’s a fire and all the evidence against Andy gets destroyed, he’s doomed.
Unfortunately for Andy, he can’t take a plea deal because it would require him to pay back Ryion, Kyle and Chris before the 19th in cash or certified funds. Andy can’t go forward without an attorney unless he’s actually thinking of representing himself. He seems to think he has enough “evidence” to go forward alone, but I don’t think he’s stupid enough to try. I guess we’ll just have to wait and see.
Posted on May 24, 2012 in Trial Updates
After a week, it appears that Andy Esquivel still remains without legal representation. This is a dangerous situation for him since he has a a pre-trial hearing on less than a month.
As most of you already know, Andy’s own attorney quit when he realized that (a) Andy Esquivel is guilty of fraud and has no hope of winning a trial and (b) Andy can’t afford to accept a plea bargain because it would require him to pay back the Utah victims immediately. So far the court has not been notified of Holje’s replacement.
Andy’s next hearing will likely be very entertaining. The main question is whether or not he will be able to scam someone out of enough money to pay Ryion, Kyle and Chris back or whether he will accept the help of a public defender. Whatever Andy decides, it is clear he has only two choices: pay the Utah victims back immediately or start packing his bags for an extended stay in Utah state prison.
Posted on May 18, 2012 in Trial Updates Xtagged
Michael Holje filed a motion Wednesday asking to be released as Andy Esquivel’s attorney in the securities fraud case now pending in Davis County district court (case#111701135). A copy of the motion to be released can be found here [PDF] and as always a full case update can be found here [PDF]. No new counsel has as yet come forward to replace Holje and there is no indication yet as to whether or not Andy will accept the help of the public defender.
Andy was advised by mail that he is still required to appear before Judge Connors on July 19th for his pre-trial hearing. Unless Andy reaches a plea agreement with the court before then, the case will proceed to trial.
This is a serious setback for Andy and his defense. Most likely Andy either ran out of money ofr the poor suckers he was scamming to help him pay his legal fees wised up and decided it wasn’t worth it for them to float him anymore. Whatever the case, Andy is in serious trouble without competent legal counsel, and little is he aware that his troubles are just beginning.
Posted on May 1, 2012 in Andy's Videos Xtagged
At long last Andy has released a new video! This one is particularly entertaining because Andy covers the full range of his psychosis and spins an imaginary web of conspiracy theories and deception to try to make it seem as if he really was once a legitimate businessman, but that shadowy forced (led of course by me) have surrounded him with lies and deceit to bring him to trial unjustly.
In the process Andy reveals what we’ve all known for months: Wiser E-Cigarette Colorado is no more. All you have to do is go to the WiserElectronicCigarettes.com website to know that! The site’s been offline for months and “WiserMan” has stopped making embarrassing videos! Since Wiser E-Cigarettes were the only product Andy had that he could even plausibly claim to be re-selling, we can deduce that Wiser Technology is now defunct as well. None of our contacts in Colorado have spotted any more disguised Hyundai Veloster prototypes undergoing high-altitude testing and and even “Wiser Water” has vanished from supermarket shelves, so it must be true. Occupy Denver is defunct now, so that means Karma Cause must have been abandoned also – which means no $1,000,000 dollar check for the poor this Christmas. ORS Colorado says Andy hasn’t paid a dime of child support since they found him, which means Andy has no money and no job! When will this guy finally admit that he’s a total failure as a human being, get some honest work, and start paying his bills?
Anyway, here are the video highlights:
All these videos of course beg the question: Why does Andy bother? He’s on trial for securities fraud – does he really think posting more and more ridiculous videos is going to somehow help his case? Who does he think is watching, besides the small community of us who enjoy laughing at him? I guess the real question is; if Andy knew how pathetic these videos make him look, would he still be making them?
Posted on April 26, 2012 in Trial Updates Xtagged
On April 24th Michael Holje asked for a continuance of the pre-trial conference until June to give him more time to negotiate a plea or prepare for a defense. The court agreed and a 2nd pre-trial conference has been set for June 19th at 8:34am. As always trial updated can be found here [PDF].
Posted on April 25, 2012 in Xtagged
According to sources who received emails (from Andy) about the project, a new movie is in the works. That’s right, “Xtagged the Movie” will be coming soon to theaters all across Andy’s imagination.
The new film will cover the story of Xtagged from it’s roots in ham radio in the 1950s all the way up to Andy Esquivel’s pending criminal trial and ultimate conviction on securities fraud charges. Comedian Carlos Mecca has reportedly agreed to play the roll of Andy Esquivel in the new film, which will no doubt be directed by Ron Kelsay.
In other news, Andy Esquivel is running from the Colorado Office of Recovery Services which is trying to get back child-support from him for the two kids he abandoned in Utah. Since Andy is currently unemployed, hasn’t worked in over a decade, and is about to be charged with fraud, they’re finding it difficult to get Andy to own up to his parental responsibilities. Andy hasn’t paid a dime in child support in years.
Andy now claims that the real roots of Xtagged were in Ham Radio. He’s come to this conclusion because he noticed one day that Shar Jenkins’ father Silvester C. Jenkins, who is apparently a Ham radio enthusiast, has a personalized license plate with his call leters on it. This has been a practice of HAM radio enthusiasts for years, and therefore Andy concludes that it must have been his inspiration for Xtagged!
Andy’s pre-trial hearing was held yesterday at 8:34am. We don’t have any updates on the hearing yet, but will post details once the court records are updated.
Posted on April 12, 2012 in Andy's Threats
This won’t come as much of a surprise to anybody here, but there’s new evidence that the “Scam.com” user on the Scam.com website was in fact Andy all along.
We all knew it because Andy copied the tagline from out UtahRaves.com thread and made it the tagline of the user, but was too stupid to realize that the tagline got truncated (something any sane person would have seen right away). The “Scam.com” user always posted the most mindless and zombie-like things, and although they were all critical of Andy, they usually only repeated things many of us had already posted or simply agreed with what we said. The user never offered a fresh perspective of Andy’s scams (as a real user would have) and was usually so obnoxious that even those of us who were busy exposing Andy’s scams were annoyed by it’s posts.
Andy used to bash the “Scam.com” straw-man and say that the user was an illustration of the tactics we were using to expose him. Those of us who really did work to expose Andy saw through the ruse and rolled our eyes, but I’m sure the performance earned Andy a few brownie points among his mentally incapacitated followers.
Well just in case anybody on this blog still doubted who “Scam.com” was, the final proof is in: Andy changed the users profile name to read “Bannedddddd”.
The first obvious give-away that this is Andy and not a real user is that when the administrator of a vBulletin message board bans somebody, their username remains the same, but their tagline changes to reflect the new status. Sometimes the username appears with a line through it to make the point clear. Changing the username to “banned” would be silly because every “banned” user would have the same name…a condition frankly not even allowed by the VB database.
Second and even more obvious giveaway is Andy’s use of a string of d’s in the name. Andy is obsessed with strings of d’s because he fell in love with a skit by a comedian named Carlos Mecca a few years back that featured the him in a chicken costume singing a “deedeedee” song. Most of us here never got the joke, but Andy cracks himself up with it all the time so he references the skit any time he gets really excited. I’m sure many of you have heard Andy say “I got you now you DDDs.” It’s the kind of humor only a drug addict could understand.
Andy must have gotten bored waiting for trial and so decided to play with one of his sock-puppets over at Scam.com to amuse himself.
Posted on April 6, 2012 in Andy's Videos Trial Updates Xtagged
The audio transcript of Andy Esquivel’s Felony Securities Fraud preliminary hearing and his subsequent arraignment on three felony counts of Securities Fraud is now available here.
After the hearing was over, Andy walked out of the courtroom and confronted his followers who were forced to wait outside and who had no idea what had just happened in the courtroom. Watch this [VIDEO] of Andy trying to put a good spin on the fact that he was just indicted on three felony counts of securities fraud. It’s really fun to watch a master con artist and pathological liar at work.
Posted on March 29, 2012 in Andy's Threats Karma Cause Trial Updates
As a goofy twist to a story that’s getting so tiresome and repetitive that it’s almost not worth posting about anymore, Andy Esquivel now claims that the witnesses who testified at his March 21st preliminary hearing are all guilty of perjury. Here’s the evidence:
———- message ———-
From: ryion butcher <email@example.com>
Date: XXXXXXXXXXXXXXXXXXXXXXX at 11:36 PM
Subject: RE: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX!
To: firstname.lastname@example.org, email@example.com, firstname.lastname@example.org
Cc: email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.orgPrivate until court!!! XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXLook how Ryion signs off!Sincerely,
1% Owner XTagged –
Entitled to 1% of all dividends and profits
…boy, nobody saw that coming.
Forget for a moment that a pathological lying idiot like Andy Esquivel accusing anybody of “perjury” is like Jack the Ripper accusing somebody of assault and consider the futility of posting an accusation of ‘perjury’ online. Wouldn’t those accusations be more appropriate for his attorney to raise in court? If the accusations had any merit whatsoever, wouldn’t his attorney have raised questions about the given testimony during cross examination already? If you were an attorney for the defense and you were holding out for trial to raise questions about witness testimony, would you advise your client to post your allegations on the web for everybody including the prosecutor to see weeks in advance?
It’s amusing to me to see how much more desperate Andy’s posting become the closer he gets to trial. First there were no charges. Then the police were going to testify in a counter suit. Then the charges had been thrown out. Then Allen Brady was supposed to be negotiating with the DA to have the case dismissed. Then there was going to be a change of venue to Colorado. Then there was this box of evidence that Andy was going to use to beat the case. Then Andy was going to have all his friends testify in his defense. Then Andy was going to reveal all the details of this huge three year conspiracy in court. Now there’s perjury. Next Andy will claim he was framed or that his appeal will exonerate him. Finally Andy will say it was all staged for a documentary about how an innocent man can get charged with fraud with an insider’s look at life behind bars.
No intelligent human being can watch the events of the last three years and conclude anything less than the obvious: Andy Esquivel is a pathological lying idiot who can’t find a job and who survives by conning mentally incompetent sidekicks like Allen Brady into paying his legal bills.
Thankfully the drama is almost over.
Posted on March 23, 2012 in Trial Updates Xtagged
I’ll have more updates once I review the audio transcripts, but on Wednesday Andy’s attorney tried and failed to get Andy’s charges reduced through a plea bargain. First he offered to get the investors their money back within an hour in exchange for reduced charges, but Andy was unable to come up with the money. Next he tried to get Kyle’s 2nd degree felony charge reduced, but the Judge and prosecutor would have none of it.
All three victims testified on Wednesday as well as Adam Sweet of the Utah Department of Securities and his Director. The case against Andy was made clear and little room for discussion was left after the expert testimony. Andy’s minions were not present in the courtroom as the Judge issued an exclusion order removing them from the court-room.
A pre-trial hearing has been set for April 24th, after which Andy will go to trial for securities fraud. A case update can be found here [PDF].
Andy also released this hilarious video in which he makes a slew of new allegations and shows off the hidden cameras he supposedly used over the last several years to document his persecution by the state of Utah. Andy also talks about his new Wiser memory card with amazing new features to impress his friends. It’s fascinating how easily Andy Esquivel slips from one lie to the next without skipping a beat and without realizing his lies are contradicting other lies he told previously. It’s very entertaining to watch a mindless sociopath at work.
Posted on March 6, 2012 in Trial Updates
We’ve just uploaded the minutes of Andy Esquivel’s sentencing hearings form case numbers 101101321 (Digital Harassment – ‘no contest’) and 091800357 (Disorderly Conduct – ‘guilty’). Full minutes are linked below:
Digital harassment ‘Non Contest’ plea minutes [PDF]
Disorderly Conduct ‘guilty’ plea minutes [PDF]
Andy’s attorney also filed a motion to forfeit a portion of Andy’s bail to satisfy the fine. A copy of the motion to forfeit part of the $500 bail Allen Brady paid to satisfy Andy’s fine can be found here [PDF].
Posted on February 17, 2012 in Andy's Threats Ron Kelsay Trial Updates
January 17, 2011 A. Fork prosecutor offers Andy plea bargain (NO jail and one year probation). Andy said no thank you. WHY? because Andres Esquivel is innocent!
Apparently he changed his mind:
This morning Andy Esquivel plead “No Contest” to Class B Misdemeanor Digital Harassment charges (case#101101231) in Utah District Court. Andy was ordered to pay a $250 fine ($50 per month for five months beginning April 1st) and to break no further state, local, or federal laws for a period of 12 months. A full case update can be found here [PDF].
WE ALL WILL PROVE EVERYTHING 02/17/2012 9:30AM AT AMERICAN FORK! Steve, Shar, Allen, Gene, Denise, Jake, John, Ron and more
Today Andy, Steve, Shar, Gene, Denise, Jake, Ron and the gang proved…NOTHING!!! It was a little anti-climactic to he honest. Andy sent me 50 threatening emails over the course of 18 months. He probably sent more actually, but I configured my email server to block all his messages so I have no idea. As a result of his threatening spam, Andy was ordered to pay the state of Utah $5 per email. That’s one expensive Gmail account!
Posted on February 15, 2012 in Trial Updates
Just uploaded details of the “plea in abeyance” which Andy’s attorney negotiated with the court on February 6th. It stipulates that the plea stands in abeyance for six months on the condition that Andy break no further laws in that period and pays a supervisory fee of $300 and all court costs. A link to the minutes of the hearing can be found here [PDF].
Posted on February 9, 2012 in Andy's Videos Trial Updates Xtagged
I know this will come as a SHOCK to some of you reading this blog, but Andy Esquivel recently posted a new YouTube video in which he claims that (get this) Xtagged wasn’t a scam after all!
Wow, what a relief! I had no idea. Damn, well I guess Andy can fire Michael Holje now and we can all go home…NOT!!!
As ‘proof’ for his assertion that Xtagged wasn’t a scam, Andy points to a password protected link on his Wiser Technology tombstone website which he says contains documents which PROVE that even though Xtagged never legally existed, it somehow legally existed – did you follow that? No? Ok, let’s try again…
In order for a company to legally exist, it must be registered with the Secretary of State of the state in which is chooses to do business. Oh, and it should probably have a business license to go with that registration. Xtagged, Inc. never had a business license, and was never registered in either Colorado or Utah. That means Xtagged Inc. never existed except in the imagination of Andy Esquivel.
Just to be clear for those of you who are still confused: just because Andy Esquivel pretends that a company exists, that doesn’t make it so. 😉
So, Andy has these fraudulent documents which he claims prove the impossible, but they’re hidden behind a password protected link that he’s only given to the multitudes of journalists, who couldn’t care less about him because none of them ever show up to any of his court hearings, and he expects those of us who aren’t out of our minds to believe him? …uh-huh, that’s what I said.
Anyway, in Andy’s video, he goes on and on about how he warned everybody that Xtagged wasn’t fake (as if that somehow makes the company real) and points to an email he sent in which he tells everybody this months ago. He even claims to have told the SEC (by which he means the Utah department of Securities). Gee, I wonder why the Davis County Prosecutor decided to go ahead with the case when Andy had sent out this email saying he wasn’t a scam after all? The Utah Department of Securities investigator must feel like a fool for missing Andy’s email telling him that the whole investigation was a waste of time. All Andy has to do is show that warning email to the Judge on the 21st and I’m sure it’ll all be over. Good luck with that Andy!
Esquivel even digs out an old email my mother wrote when she was still completely delusional and hanging on Andy’s every word. My mother later apologized for the email and admitted that everything in it was a lie, but that doesn’t deter Andy. Beckie even tried to make up for her part in Andy’s various scams by sending hundreds of pages of incriminating documents to be used against Andy in his pending fraud case (see Beckie Speaks for a sample), but again Andy is undeterred.
All-in-all it’s a pretty sad video. Andy is obviously out of steam and grabbing at straws to try to save his pride. I guess facing felony fraud charges and an eminent indictment can really weigh on a guys psyche. No matter, it’ll all be over soon. All Andy has to do is plead ‘guilty’ and he might be able to avoid spending the next several years in a Utah state prison.
…or he can just go into hiding for ten years like he did when he was charged with 2nd degree felony burglary of a dwelling in Weber county back in 1988 and just hope the whole thing blows over before he’s 50.
Posted on February 9, 2012 in Xtagged
Logan Laws has just returned form his mission! He arrives just in time to testify against Andy Esquivel – if Andy’s lawyer isn’t able to negotiate a plea deal before the trial starts.
Logan bought .5% of the fictional company “Xtagged, Inc.” from Andy Esquivel for $2500 – which he borrowed from Ryion Butcher. Logan’s father was able to pressure Andy into returning the money by threatening to turn him over to the authorities press charges for fraud (ironic when you think about it). Andy was only able to come up with the cash by conning it out of a gullible dork named Shar Jenkins in Denver. Logan then returned the money to Ryion.
All of this is of course documented and the prosecutor has all the details. Logan has stated that he intends to tell his side of the story at trial. It should be interesting. How low can a con artist go, scamming money from a 19 year old kid? Andy deserves what’s coming to him.
Posted on February 8, 2012 in Andy Esquivel's Scams Xtagged
Is anyone else still wondering why Xtagged.com still redirects to Bump.com in spite of the fact that the Bump people have made it clear numerous times that they have absolutely no affiliation with Xtagged.com, Andy Esquivel, Wiser Technology, Karma Cause, or any other scam Andy is running? I’m just curious what Andy thinks he’s accomplishing by linking to a company that doesn’t know or care that he exists and that he claims to be suing.
Seem retarded to anyone else?
Daryl,BUMP has NO affiliation and NEVER has had any affiliation with Xtag, BUMP is not being sued by xtag.—Best Regards,Andrew PhippsBUMP.com1295 Prospect St
La Jolla, CA 92037
Director of Business Intelligence
Posted on February 8, 2012 in Trial Updates Xtagged
Andy’s attorney notified the court this week that he needed more time. A new preliminary hearing data has therefore been scheduled for March 21st @ 2:30pm. Here’s the latest case update [PDF]. Odds are Michael Holje will spend the next month negotiating such a plea bargain on Andy’s behalf and advising his client to take whatever he can get.
Posted on February 7, 2012 in Andy Esquivel's Scams Wiser Eyes
Just to illustrate how the Wiser con works, here’s an image of a pair of MYVU Solo EV video glasses (top image) and an image from the Wiser technology website of the Wiser Eyes HD video glasses Andy pretends to manufacture. Notice the uncanny resemblance between the to!
Only an idiot could look at these two images and take Andy Esquivel seriously. Aside from the obvious Photoshop work on Image #2, it is clearly the same photo. No wonder Andy is on trial for fraud!
Notice what a terrible job Andy did blocking the “MYVU SOLO PLUS EV” label from the black space above the glasses? You can still see the black box he drew to cover it up…pathetic!
Posted on February 7, 2012 in Trial Updates
Andy’s attorney successfully negotiated a plea deal with Bountiful City in case #091800357. Andy plead “Guilty” to one charge of “Disorderly Conduct” and the “Fail to Appear” charge was dropped. As noted earlier, Andy was ordered to pay a $300 fine on the disorderly and given three months to pay. The full case update with final disposition may be found here [PDF]. The fine in this case was the same one John Steer was forced to pay by Utah state “Gotcha check” when he filed his tax returns in 2010 [PDF]. John also plead “Guilty” to a single count of “Disorderly Conduct” in 2009 [PDF].
There is no record of Andy “suing” the city for “racism” or anything else which Andy has claimed over the years. In the end, all Andy’s stories about Bountiful city came to naught.
Posted on February 6, 2012 in Trial Updates Xtagged
I’ve uploaded a scanned copy of the fraudulent documents Andy Esquivel used to scam Georgia Brady out of $50,000. The docs were drawn up by Georgia’s attorney and her son Gene Allen Brady helped facilitate the scam. The documents are notarized and would be fine except for one tiny detail which Georgia’s lazy attorney never bothered to check: the company listed on the documents “Xtagged, Inc.” never legally existed. These documents are evidence of fraud, however Georgia’s brainless son convinced her not to press charges against Andy so that he could continue to be Andy’s friend.
Here’s a link to the document [PDF].
…and here’s Georgia Brady’s response to the way Andy jerking her around after stealing her money:
From: Georgia Brady email@example.com
Date: Fri, 9 Apr 2010 11:38:20 -0700 (PDT)
To: firstname.lastname@example.org, email@example.com, firstname.lastname@example.org
Subject: 10% ownership of Xtagged
April 9, 2010
To Whom It May Concern:
Last week, Andy set up a meeting with me, our lawyer and Steven K. McCormic for yesterday in Sandy, Utah at 11:00 a.m. As usual, he didn’t keep his commitment and is still jerking us around.
What is it going to take to get all of you to understand that Allen and I have the right as part owners of Xtagged to know who all the new owners are, the name and contact information of your lawyer so we can send the proper paper work to him that will show we legally own part of Xtagged? I know that Andy is blocking our every efforts so you don’t find out what a
liar he is. Like it or not, Andy has committed fraud and if you continue to protect him, you will be part of his fraud game and guilty by association according to the law.
Now, we can get this information peacefully and professionally or we can get it the hard way. Your choice. If I don’t get this information for my lawyer within the next 24 hours, Andy and Xtagged plus everyone associated with him will be turned over to the Federal Division of Securities for fraudulent activities Monday morning. Andy has done fraudulent business in 5 or 6 states, making it a Federal offense. Not only will they get our information for us but Andy will end up in prison again.
So, do we do this peacefully and professionally or the hard way? Your choice – 24 Hours!
Please email the information to Georgia. Thank you.
Posted on February 6, 2012 in Trial Updates
Today Andy Esquivel’s attorney reached a plea deal on his Bountiful disorderly conduct charge. Andy is being fined $300 (the same as John Steer) and must pay $100 per month beginning on March 1st. The final case disposition has not yet been filed, but here is the case status [PDF] as of this writing and the notice of the fine and payment arrangement details [PDF].
So Andy has to pay $300 for getting his butt kicked in Bountiful three years ago – good for him! It’s a shame he didn’t take care of this back in 2009 so he could have avoided having Allen pay $750 to keep him out of jail all this time. He might also have been able to avoid paying an attorney to negotiate on his behalf. $200/hour is a lot to pay someone to clean up after you.
Posted on February 6, 2012 in Andy Esquivel's Scams Uncategorized Xtagged
We just added a “Beckie Speaks” tab to the blog where I intent to post as many of Rebecca Dunn’s anti-Xtagged documents as possible. Beckie was formerly the pretended CEO of Andy’s various scams. She eventually came to her senses and realized that Andy is a con man and Xtagged / Wiser are scams. She’s still a little delusional, but her documents add a lot of color to Andy’s operations and state of mind.
Posted on January 27, 2012 in Wiser Car Cover
Apparently Andy’s Wiser Car Cover idea started with Allen Brady. According to Allen, he gave Andy an idea one day for a car cover that inflated using air from a car’s tires. The idea was that hail storms in the Denver area are so frequent that consumer demand for an inflatable car cover would be tremendous and Wiser Technology investors would make a fortune!
Allen is obviously and idiot and never thought that deflating an automobile’s tires in order to protect it’s paint reflects misplaced priorities that only he and Andy Esquivel could possibly share, but Andy ran with the idea anyway.
After hours playing with rope and packing materials, Andy came up with a “prototype” which he displayed on his daughter’s toy pedal car. The video of this elaborately decorated rope and plastic bubble wrap concoction is now considered a classic by Andy Esquivel [video] connoisseurs.
After the whole world finished laughing about Andy’s ridiculous toy car cover invention, he got quiet for a while. Then Andy had a breakthrough. While eating at Burger King one day he happened to spot a prototype of the 2012 Hyundai Veloster on a lunch break during high altitude testing in Colorado. Automobile prototypes undergoing testing are routinely wrapped in anti-spy covers to foil the automotive press, and Andy saw a prime opportunity to pass a photo of this car off as his own using his imaginary car cover!
Now, it’s obvious to anybody who’s ever read an automotive magazine that this image is of a car in anti-spy wraps and not some new car cover designed by Andy Esquivel, but Andy persisted…even after photos of other 2012 Hyundai Velosters in the same anti-spy wrap (prominently labeled as Hyundai Velosters in anti-spy wraps) were posted on anti scam threads across the Internet. Amazingly, Andy refused to admit that he’s been caught in a lie and a scam red handed and indignantly continued to insist that his car cover was real [video]. He even posted an elaborate story about him being in New Mexico testing the car cover and filming the entire test from a motor home in chase.
His explanation for the Hyundai Veloster spy photos was that these were traditional car covers and that Wiser had made the car covers better by adding the inflation feature…completely missing the point that these images aren’t of cars with commercial car covers on them at all, but instead prototypes with factory disguises.
This is probably my favorite example of our lunatic friend Andy Esquivel making a complete idiot of himself trying to perpetrate a hilarious scam in the face of embarrassing realities. Andy simply never knows when to give up, even when caught red-handed. The original image is STILL hosted on the Wiser Technology website with the label “Wiser Car Cover” because Andy is too embarrassed to admit that it’s a fraud.
Posted on January 27, 2012 in Xtagged
I first became aware of Xtagged through a club owner in Salt Lake City. I owned all the nightlife websites in the state at the time and Andy had approached this club owner about his social media website hoping to persuade him to give Andy special access which he could use to look like a big-shot and pick up girls. Andy tried this ploy in several nightclubs in Utah including Skybar, Allure, and eventually Playground, which (according to Andy) went so far as to give him a percentage of the club in exchange for ownership of the club in exchange for licensing rights to the Xtagged.com website. The club owner in Salt Lake suggested that Andy meet with me, since I was already dominant in the nightlife social media space and a friend of his, and called to recommend I speak to Andy.
When I met Andy, he gave me an elaborate pitch about a dating website that used license plates to authenticate users and blue-tooth technology. He told me that MySpace was offering to buy him out for $100 million dollars and that everything was patented. The idea didn’t sound very marketable to me (the MySpace buyout claim was downright ridiculous) and I doubted it would ever go anywhere, but I continued to listen to Andy because he had been recommended by a friend and because his claims about patents seemed plausible and if so would have indicated that there was in fact some legitimate intellectual property behind what he was saying. I wouldn’t find out until much later that his patent claims were absolute garbage.
I told Andy that I would post his Xtagged logo on my website’s homepage (it actually rotated with other partner logos) and that I’d introduce him to some technology investors in Park City who could flush out whether he had anything worth funding. My wife objected to me working with Andy because she thought he was full of crap, but I said that there was no risk since it wasn’t really costing me anything except my time and I owed it to my friend to at least hear him out.
I later introduced Andy to my mother, who was out of work and living with me at the time, to see if she would be able to pick up some business consulting hours for helping him get his story straight. Andy claimed to have funding and I figured if he was for real, then he and my mother could mutually benefit one another.
I eventually took Andy to meet with some investor friends in Park City, but the meeting came to nothing. They later told me that they didn’t believe Andy’s idea was worth their time and they doubted he had any really proprietary technology under the hood. My wife and I drove Andy and his companion Allen Brady home after the meeting and spend three hours with them stuck in a snowstorm on the freeway listening to Andy rant about his technology and ideas. It was then that my wife realized that not only was Andy Esquivel completely full of crap, but he was probably insane as well. I was too busy fighting traffic to notice and my wife would spend the next several months trying to convince me to stay as far away from Andy as possible.
Andy eventually convinced a club owner to let him “hang out” with his friends and promote his “Xtagged” brand in their vanue. The club was Playground in Park City and Andy invited me up to take pictures of his events and to meet the club’s owners. The events was a total bust with only Andy’s invited friends and Allen Brady attending, but I used the time to introduce myself to the owners in the hopes that I could leverage the relationship later during Sundance as a way to expand my website’s reach into Park City. It was during that event that I started gettign red flags which suggested Andy was not at all what he claimed to be.
First, Andy pulled me aside and complained that I’d talked independently to the owners about working with my website to promote their events. Andy claimed that he’d “already hooked [me] up with them bro” and that I’d “embarrassed him” by going over his head. I pretty much blew Andy off and told him that under no circumstances would I allow him to speak for my website or to be an intermediary between me and nightclubs in the area. My website sold itself and the last thing I needed was some small-time upstart interfering with my operations.
Later that same night Allen Brady gave me my second red flag when he approached me at the clubs back bar and confessed that he was beginning to think that Andy was a scam and completely full of crap. I didn’t share with him at the time that I had come to the same conclusion. Instead I reassured him that many early stage ventures seem shifty at first and that he should keep a healthy skepticism and keep his eyes open, but that I was sure Andy was probably an alright guy. In short, I lied!
Andy and I continued to speak occasionally over the phone for several weeks after the failed Playground event. I managed to talk to his patent attorney at one point about some unrelated business, but Andy told me not to call him again because he was trying to steal the company from him (a recurring theme over the years). My mother continued to meet with Andy and even had my uncle talk to him about his ventures. Apparently Andy gave him a sob story about his lawyers trying to steal his business from him and my uncle bought into it, offering to help. I’m frankly not completely convinced that my uncle isn’t a con-artist as well.
I continued to tolerate Andy even though I was increasingly convinced that he was full of crap because I believed that with some professional help he might be able to turn his wild ideas into a viable concern. I kept his logo on my website to add variety and my mother continued to work with him even though, except for a few dollars Andy asked me to give to her once at Playground, she wasn’t getting paid. Eventually my mother moved away and I lost touch with Andy. Looking back, it was a huge mistake to deal with Andy for as long as I did. The red flags were all over the place, but like many I was too busy to pay them much attention. Most of the time I would humor Andy and listen to his rants simply to avoid an uncomfortable conversation in which I confessed I didn’t believe a word he was telling me anymore. I was probably numb to Andy’s garbage because I dealt with so many promoters who were just like him on a weekly basis.
In the end, the only person I have to blame for my involvement with this dirt-bag is myself. My wife continues to tell me ‘I told you so!’
Posted on January 27, 2012 in Xtagged
Xtagged.com was a social media dating website assembled by Andy Esquivel that used license plate numbers as the primary identifier. I claimed to make the Internet safer by employing advanced technologies like facial recognition and API links to law enforcement databases (like child molester registries) and the DMV to authenticate user identities.
Unfortunately the entire system turned out to be an elaborate scam and Andy Esquivel was subsequently charged with three felony counts of securities fraud for selling stock in the holding company (Xtagged LLC or Xtagged Inc depending on the day of the week) which never legally existed.
The case is now before a district court judge in Davis County and Andy faces up to 25 years in prison if convicted – 15 for one 2nd degree felony count and 5 years for each 3rd degree felony count of securities fraud. The Utah case number is 111701135.
Xtagged.com no longer exists and is being redirected to Bump.com, a legitimate website based on the same concept. Andy current;y contends that Bump.com stole his idea and claims to be suing them over it, though no evidence of such legal actions exists and there would be no basis for one if it did.
Posted on January 25, 2012 in Ron Kelsay
Here Andy’s latest blog. It’s supposed to be an email from Ron Kelsay. The grammar and spelling are better than normal, but still far below that of an educated adult with English as his first language so I’m assuming this was written by Andy pretending to be Ron. Notice the repeated lack of periods and the lack of coherent idea-flow? Also notice how Andy claims that the background information we found (very easily I might add) on Ron Kelsay was made up. Ron knows his criminal record and even he isn’t stupid enough to try to claim it’s not all true.
It worked Daryl & Ryion manipulate Ron’s past…From: Ron Kelsay <email@example.com>
To: Karma Cause <firstname.lastname@example.org>
Sent: Tuesday, January 24, 2012 9:05 PM
Subject:When I first met Andy, I heard through a mutual friend that he was looking for a camera man to shoot several promo spots for Wiser e-cigarettes. At our first meet I was informed about the slander campaign Lead by Daryl against Wiser technology. A couple of months went by before I was chosen from other camera men Andy had been interviewing. Because of Daryl Acumans slander campaign against Wiser E-cigarettes. The promo spots were put on hold That’s when Andy mentioned the documentary. I was chosen not because of my experience but because I could play a role that the others couldn’t. Because of my background I was a perfect candidate to fish out proof of Daryl’s tactics. My job was not only to document what was happening but to engage in conversation with Daryl, Ryion, Kyle and whoever else Daryl had pushing his relentless campaign. We knew that Daryl attacked anyone who Andy did business with. So I set myself up as bait. I contacted Daryl and Ryion on the blog at partyutah.com that has now been removed. Immediately Daryl tried to convince me that Andy was a scam. Next he attacked my credibility calling me a scam I began calling him out on most of his accusations. During our conversations I was able to profile his personality traits which I later used to get him to expose his true intentions, who was helping him and several of his ridiculous lies. His attacks on me didn’t stop at posting my background check with made up scenario attached. He hacked into my Facebook page copied pics of my 2 year old niece which he posted on his blog. Tried to convince readers that I tattooed a 2 year old. Posted links to my sons video on Youtube, calling him a drug addict because of his lyrics. Stalked my ex wife’s page made comments about her teeth because she posted how she got her new veneers. His explanation to that comment was she smoked so much meth she rotted her teeth out. He posted her background check with made up scenario as well. This is typical behavior for Daryl but relatively minor compared to the abuse that Andy has had to put up with for over two years.
Cyber bulling has caused teens to commit suicide. Those cases are made aware by the media. When it’s used to destroy a company as a form of corporate espionage and the credibility of an individual businessman, Most people just assume it’s true. Why would anyone work so hard to expose a con artist unless it were? This story will expose how a sociopath bent on revenge, having ties to individuals who stole intellectual property and sold it to bump.com, manipulated business partners to violate non disclosure agreements, destroy their own company and file false charges against Andy. We intend to show how one man was able to manipulate SEC agents, police and the Utah courts. How he contacted every business associate Wiser had negotiated deals with calling Andy a scam, causing them to back out. Slandering every product Wiser technology produces, every owner or business partner associated with Wiser Technology including their families. There are no laws to protect from this. The only recourse is civil action. Based on Daryl’s comments we believe he is receiving compensation in exchange for destroying Andy’s character to save bump.com, embarrassment and sabotage the lawsuit Xtagged is bringing against Platester/Yourplates.
Posted on January 19, 2012 in Trial Updates
Andy Esquivel just posted the following on his Wiser Scam website:
January 17, 2011 American Fork prosecutor offers Andy plea bargain (NO jail and one year probation). Andy said no thank you. WHY? because Andy is innocent!
Hmmm…so it looks like Andy is holding out for a better plea deal than “NO jail and one year probation.” What’s he expecting, no jail and six months probation? Maybe he really does want this case to go to trial.
Posted on January 17, 2012 in Andy's Threats Trial Updates
Andy Esquivel is still trying to convince his friends that he’s in complete control of his legal situation and that things aren’t as bad as they appear. Here’s the lates from the Wiser Technology website:
Court Update; January 17,2012 in Davis County court, we all finally get to tell our side as owners of Xtagged. John Steer, Jake House, Allen Brady, Shar Jenkins, Steve klemark & more. Followed by American Fork where we all will testify against Daryl Acumen.
After we all prove that securities were never sold as Ryion & Daryl stated “hundreds were sold”.
We will continue with our lawsuit for Xtagged.
F.Y.I Wiser Technology has received a great offer from a Nevada company that we are looking into 01/18/2012.
…so where do we begin? First of all, the hearings held today in Davis County and American Fork Utah were preliminary hearings, not trials. There was no jury and nobody was the least bit interested in anything Andy Esquivel had to say. In short nobody “testified” about anything…period! In both cases, Andy’s attorney simply informed the court that he needed more time to convince his client to plead ‘guilty’ or to formulate some kind of defense. The idea that Andy or his gullible friends would get to ‘tell [their] sides of the story’ today or ‘testify against’ me is completely delusional and illustrates how mentally disturbed Andy Esquivel is.
Second, Andy is an IDIOT if he thinks he’s going to be able to convince a judge that he never sold securities, especially when the state has copies of the checks written to him by investors as well as signed documents claiming to do precisely that. I don’t know what Andy means by “hundreds were sold”. Hundreds of what? Does he mean shares? If so, then his own documents conform that Andy sold tens of thousands of shares, not hundreds.
As for a lawsuit for Xtagged, all I have to say is…next? I mean seriously, we’ve been hearing the same hollow threats about the same fictitious companies for years. Who at this point is still listening?
Finally Andy now claims that some company from Nevada, blah, blah, blah… We’ve heard that before too. it used to be entertaining, but now it’s just…whatever. The first time I ever spoke to Steve Klemark on the phone he said Andy had some BS story about investors in Nevada. Every time Andy wants to create the impression that there’s money right around the corner he brings up some company in Nevada. It’s almost a running joke, like saying ‘I’ve got some beach-front property in Arizona to sell.
I think it’s funny that Andy still has the stones to try so hard to spin his dilemma online. Everybody knows he’s guilty of fraud and within a few months he’s going to be pleading guilty to all charges. What does he think he’s gong to gain by continuing to lie?
for REAL updates, stay tuned to this website and check out “Trial Updates” section monthly. As new information comes in that is public record, we will post it here.
Posted on January 17, 2012 in Trial Updates
Today Andy showed up in American Fork with his attorney and was granted another continuance. The court ruled that he doesn’t have to show up for the next hearing and that a plea statement can be filed via affidavit. For more details, click here.
Posted on January 17, 2012 in Trial Updates
Andy appeared in court today with his attorney and asked for a remand of his waived preliminary hearing from last year. The Judge set the date for a remanded preliminary hearing on February 17th 2012. For details, click here.
Posted on January 4, 2012 in Trial Updates
Michael Holje appeared in court today on Andy Esquivel’s behalf and secured a continuance until February 6th while he and the prosecutor attempt to come to some sort of resolution. Andy is currently free on $750 cash bail pending trial. For more detail, click here.
Posted on January 4, 2012 in Andy's Videos
Personally I think this is one of Andy’s stupidest videos. It’s definitely his most daring! Here Andy actually tries to manipulate the key witnesses in his securities fraud trial on camera with promises that they will all be millionaires if they keep their fake shares. It’s unbelievable that someone facing felony charges for fraud would publicly attempt to manipulate key witnesses in the case against him and promise them money if they continued to buy into the scam.
Andy begins this video by claiming that he is not the manipulator, I am. This a pretty bold claim considering he’s on trial for manipulation and I am not.
40 seconds into the video Andy brags that there’s a multi-million dollar lawsuit int he works and suggests that if the witnesses against him cooperate, they will be able to share the spoils. This is absolutely insane! First of all, Andy doesn’t have the resources to file such a lawsuit, second he has no grounds for such a lawsuit since he has no intellectual property and never filed a patent for any of his ridiculous ideas, third Andy’s only attorneys are criminal lawyers trying to keep him out of jail, and finally trying to bribe witnesses with promises that they will share in a multi-million dollar lawsuit if they play ball is criminal!
At :55 Andy claims that my mother and I were hired by some unnamed masked man to discredit Andy. That’s an odd claim considering I haven’t spoken to my mother in years and I already have a job (Andy it must be noted does not).
1:05 Andy claims that he’s not angry at the Utah victims for stealing their money and that this all his rants over the last three years were simply to collect data for Steve Klemark’s mythical Digital Internet DNA project. In other words, Andy never meant to look like a nut, it was all just a setup for me.
1:25 Andy claims that he will be bringing 20 – 40 people to Utah for his criminal trial instead of the half dozen brainless minions he brought to his preliminary hearing. He then says that he’s been trying to get in touch with the ‘District Attorney’ to make arrangements to pay the Utah victims back, even though the Prosecutor told Andy that doing so would not stop the criminal case against him and he didn’t need to go through the courts to do it.
2:00 into the video, Andy begins going through his collection of Linked In connections and bragging that they imply some sort of broad media coverage and legitimacy on his part. He thinks that having a connection to a recruiter for Linked In means he’s endorsed by the company. He shows a Linked In connection between Steve Klemark and the Mayor of Denver (not surprising since he’s a state employee) and uses that to ‘prove’ that Steve Klemark is more than a low-level IT guy at the Denver PD. Andy actually spends two whole minutes ranting about how a few Linked In connections proves he’s famous, which only shows how little Andy knows about social media.
4:15 into the video Andy begins ranting about how Mitch Thrower is a Billionaire (he is not) and how he found a fatal flaw in Bump.com and somehow that has something to do with Andy and Xtagged. This segment is mostly senseless babble which makes little sense, but Andy uses the fog to allude to some sort of connection to Thrower and to imply that this somehow validates Xtagged or his lawsuit or something.
Now the fun part! Startign at about 5:00 in the video, Andy turns the spin up to 11. he starts by asserting one more time that he SOLD Xtagged and that if the Utah victims keep their fake percentages in a legally nonexistent company and let him keep their money, they will all become millionaires! not only that, but they’ll also be asked by mentally incapacitated stoner Allen Brady to tour the country and speak on countless college campuses telling the story of how they were manipulated by me. You have to be really high or really stupid to fall for this garbage, but Andy keeps spinning it as if it’s the gospel straight from the lord on high. He once again asserts that the last two years of senseless rants on his part were merely to smoke me out and to gather data for Steve Klemark’s mythical Digital DNA technology. Wow!
At 5:45 in the video, Andy announces that he’s fired Leonard Martinez for collaborating with me. He goes on and on about Leonard giving me his “discovery,” even though the Davis County courts have NO RECORD of Leonard Martinez ever requesting discovery and the first recorded request for such didn’t occur until December 8th, long after this video was recorded, by Michael Holje!
To me, this video is simply amazing! It clearly illustrates how stupid Andy Esquivel is and proves that up until this video was made he was not receiving competent legal counsel. NOBODY in their right mind who was facing felony fraud charges facing fraud charges would post a video like this on Youtube and any attorney who advised his client to do so would surely be guilty of malpractice. Aside from the signed notarized fraud documents Andy used to defraud his victims, I think this video is probably the most damning piece of evidence against him.
At 6:10, Andy begins thumping his chest and claiming that the SEC (Andy has never spoken to the SEC) has promised him a federal investigation and he welcomes it. He says he’s hired a lawyer that everybody would be surprised to find out who it was. of course the lawyer turned out to be Michael Holje, a associate attorney at a law firm in Salt Lake nobody had ever heard of.
Posted on January 3, 2012 in Andy's Videos
This is one of Andy Esquivel’s first slight-of-hand fake product videos and it’s hilarious!
Andy begins by showing you a Samsung Instinct box then flips it over to reveal (dramatic pause0 a silver Xtagged sticker! Having a sticker on a box obviously means it’s a bundled product, right?
he goes on to explain that Xtagged is now shipping with the Samsung Instinct phone from Sprint and begins showing you how it works.
With a magical mix of photos stored in his phone and a savvy flip over to the built in web browser, Andy tries to convince the viewer that all he has to do it point the phone at someone’s Xtagged badge and the phone’s “secret formula freezes the shot and automatically takes you to” the persons Xtagged profile.
Only a complete idiot (like Allen Brady) would fall for this pathetically transparent trick, but Andy seems excited about it nonetheless. It takes either someone who is completely insane or really high to believe that anyone out there would fall for this sort of thing, but Andy does. He even goes on to explain that ‘recruiters’ can use the technology to stop ‘pedophiles’ from posing as something. i dind’t quite understand that part of the pitch, but Andy is excited about it anyway.
Posted on January 3, 2012 in Andy's Videos
In this video, Andy Esquivel has Ron Kelsay on the phone and they’re bragging that Ron and Ryion have come to a settlement in the case against Andy. They claim that Ron has negotiated the repayment of the roughly $20,000 that Andy stole from Ryion, Kyle and Chris in exchange for something, but not sure what.
In the video Andy griped that I’m trying to manipulate the settlement when I correctly pointed out online that Andy paying the Utah victims back would not stop the criminal charges pending against him from moving forward and would have little impact on the felony case against him. In spite of my malicious blogging however, Andy claims that his real enemy is me (Daryl) and that Ryion and the reast were really cool guys.
Here’s the rub: Andy didn’t have the money to pay Ryion, Kyle or Chris back and frankly this was all just an elaborate show to convince Ron Kelsay (a gullible convicted felon Andy picked up in Denver) that he was legitimate. Ryion never expected to get paid back and neither did the other Utah victims, but they went along with the charade in case Andy was desperate enough to prove himself not to be a fraud that he actually found the money somewhere and gave it back to them.
In the end (of course) there was no money. Andy found some excuse to push back the payment deadline and then to claim that the deal was off. All this was really immaterial, but it’s an amusing example of Andy trying to prove himself to someone who hasn’t yet figured out he’s a scam and going to the extreme length of saying that someone he’s been lambasting for three years is “really a cool guy,” only to change his mind when the ‘cool guy’ proves once again that Andy is a fraud.
Posted on January 3, 2012 in Andy's Videos
This is one of my favorites because it shows how transparent Andy’s scams can be. In this video, Andy has purchased a new Samsung Galaxy slate and tries to pass it off as a new Wiser product.
First (at :34) Andy asks you to notice that there are only fingerprints on half of his screen (like most slates) and he says “there’s a reason for that.” The ‘reason’ has NOTHING to do with the fact that the touch keyboard on most slates when holding them in profile mode only covers that portion of the screen…that would be too obvious. Andy instead claims that the reason for the fingerprint position is his new black fingernail polish which he uses to control the screen.
Here’s where it gets HILARIOUS!!! Andy brings up a slide-show of his daughter using built in photo player and begins waving his finger back and forth across the screen to make anyone with an IQ too low to know better think that he’s controlling the shifting image with his finger.
Andy claims that this new “invention” will make it unnecessary to ‘type’ on the Wiser Page (Samsung Galaxy) screen…which even if the whole demonstration weren’t completely bogus, would be a stupid product idea! Imaging, all you have to do is twinkle your fingers over the slate screen like a gay man (no offense to my homosexual friends) to type on the screen? Yea, that makes sense! How do I make sure I hit the right key? Um…
Next Andy pitches a revolutionary new Velcro strap custom made for Wiser Technology (you can see the Velcro professionally attached to the back of the Galaxy tablet earlier in the show) and tries to explain why it’s more revolutionary than…a Velcro strap.
Finally Andy shows off his daughter with the Wiser strap, pad, thing and claims they have exercise software manufacturers working on apps for doing crunches. I still can’t figure out how an Android app would help you do crunches, but… Apparently the Wiser Pad is going to be larger than the Samsung Galaxy tablet, even though it IS a Samsung Galaxy tablet, so you can fit a full keyboard, which the Galaxy already has.
All proceeds from the $15 Velcro strap will go towards Andy’s fake Karma Cause charity, which is very reassuring. Andy then tries to explain where the $499 for the Wiser Pad will go, but I guess his battery ran out first.
Posted on December 22, 2011 in Andy's Videos
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.
Posted on December 21, 2011 in Andy's Videos
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.
Posted on December 21, 2011 in Andy's Videos
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.
Posted on December 19, 2011 in Andy's Videos
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!
Posted on December 19, 2011 in Andy's Videos
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!”
Posted on December 7, 2011 in Trial Updates
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)
Posted on December 7, 2011 in Trial Updates
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
Posted on December 6, 2011 in Andy's Threats
(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).
Posted on December 6, 2011 in Ron Kelsay
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.