As everyone who’s been following this blog knows, years ago three scam victims of Andy Esquivel banded together and filed a complaint alleging that Andy improperly sold them shares in a scam he was running at the time called “Xtagged”. This blog was instrumental in organizing those victims and served as a central distribution point for all evidence against Andy and his accomplices.
We all know the results: Andy plead guilty to two 3rd degree felony counts of securities fraud, spent some time in jail, a little more time in a mental institution, and was eventually ordered to pay his victims back over $13,000 plus interest. The outcome of case #111701135 has been the central theme of this website for years, but there’s a little known side story that everyone (including this author) completely forgot about.
You see, BEFORE the Davis County Prosecutor’s office formally filed charges against Andy, in fact before any of this was even in the hands of the Davis County Prosecutor, it was first handed over to the Utah Department of Securities. That’s right, for those of you who don’t remember, the ORIGIN of this case, immediately after the Bountiful police department, was a state agency specifically charged with enforcing state securities and exchange law.
The Utah Department of Securities (UDS) reviewed the evidence handed over to them by the Bountiful police department very carefully and made a recommendation for prosecution to the Davis County Prosecutor’s office. Before the first hearing was ever held in case #111701135, Andy was required to appear before the Utah Department of Securities and to try to explain why he shouldn’t face disciplinary action by that agency. Andy met with the UDS and along with Allen Brady, made a complete fool of himself. Video and blog posts about that meeting can be found elsewhere on this website.
The UDS proceedings were ultimately put on “hold” pending the outcome of the criminal case against Andy. Everybody forgot about it, including me! I did make note the Utah Raves thread that was the predecessor of this website explaining that UDS would be holding a hearing immediately after the case was resolved to determine what acton (if any) should be taken against Andy, but that was the last time anybody has said or posted anything about those proceedings…until now.
Hold onto your hats and sit down!
Unfortunately for Andy, the Utah Department of Securities DID NOT FORGET ABOUT HIM!!! Just as they informed Andy back in 2011, UDS did in fact hold a hearing immediately after Andy filed his plea deal in Davis County’s 2nd District Court. That hearing was held on March 25th, 2015 @ 9:00am and Andy failed to attend.
On March 25th, UDS Enforcement officer David Hermansen filed a “recommended order on motion for default”, to which the presiding judge responded in the affirmative. On March 26th, that motion was granted and a default order was filed.
What the order states in brief is that (a) Andy Esquivel did in fact knowingly sell “securities”, (b) that those “securities” were fraudulent, and (c) Andy is responsible for the consequences of his actions. The Utah Department of Securities therefore ordered that Andy pay $16,325 in penalties! $3,250 was due immediately, while the remaining $13,000 could be reduced on a dollar-for-dollar basis by proof Andy Esquivel was instructed to provide within 30 days of reparations payments made to his victims. In other words, by April 25th, 2015 (two years and seven months ago), Andy was required to prove that he had payed something to his victims or he would be liable for the full $16,250. Andy never provided any such evidence, because at that time he had in fact not paid a dime in reparations to his victims. Thus, the full judgment currently stands.
In addition to the financial penalties against Andy, he is barred forever from selling securities in Utah or having any dealings whatsoever with licensed securities dealers. That means all the fundraising efforts Andy is currently undertaking for Smiley Heroes are illegal and will very likely get him further disciplinary action by UDS.
Before I wrote this post, I was under the impression that including child support, Andy Esquivel owed approximately $29,291.03 in various judgements and fines for his criminal activity. Now I understand that the actual amount is $45,541.03!
Andy, if you are reading this, do yourself a favor and contact the Utah Department of Securities at (801) 530-6628 immediately to make arrangements to satisfy this judgement. Reference case#SD-11-0033.
I will be updating the total owed on the homepage to reflect this new information. I’m sincerely sorry for not following up on the UDS case against Andy. I don’t know why it slipped my mind. At least we know exactly how deep of a hole Andy managed to dig himself into. At the rate he’s going, it will take him nearly eight (8) years to dig himself back out…good luck!
Andy is flat broke. He is unemployed. He lives with his mom. He’s collecting a few hundred dollars a month in unemployment (see this unemployment report which Andy filed with the court in November). He’s got judgments against him of over $37,000, including $24,000 in back child support. He’s been convicted of two felonies and has only narrowly avoided jail time. Yet in spite of all this, Andy keeps playing with fire!
In Tuesday’s hearing before Judge Connors, Andy was presented with the facts. He owes over $13,000 in restitution and fines, he was allowed to make payments of $500 per month, he failed to make those payments (because he couldn’t afford it) and now he’s $1,550 behind. The judge is giving Andy a lot of rope. He gave Andy one last chance to make arrangements with the court after Andy blew off his probation. Andy was in a pickle. He needed to explain to the Judge how he was going to catch up in order to keep from going to jail.
Promise Judge Connors that he’ll have the entire $13,203.71 (and counting) paid off within the next 45 days. Here’s a guy who crying to ORS because he can’t afford to pay $460 a month in back child support, has no verifiable employment, doesn’t own a car (and doesn’t even have a valid Utah driver’s license, so he couldn’t drive one if he did), lives off of his girlfriend, and yet he’s promising the court that he can come up with $13k in a little over a month? Not only that, he’s literally betting his freedom on it.
So on February 28th, Andy is going to walk into a 2nd District courtroom and explain to the prosecutor and the Judge why (a) he lied to them about being able to cough up a wad of cash thick enough to choke an elephant, (b) why he hasn’t been making his agreed upon payments for the last four months, and (c) why they shouldn’t violate him to jail immediately and throw the key into the Jordan river.
GOOD LUCK with that, Andy.
Here’s the courtroom audio for those who are curious.
Andy apparently thinks this can go on indefinitely. He seems to have convinced himself that if he throws out enough BS and plays dumb long enough, the court will eventually get bored and let him walk. Unfortunately for Andy, courts are patient and courts are final. He may be getting a lot of rope, but that’s not for him to escape with – it’s for him to hang himself with. At some point (after the very last bit of doubt has been erased) the courts will clamp down and Andy will feel the sting.
In the meantime, Enjoy your freedom, Andy. You have 42 days to prove you’re real (which you’re not). After that, this blog is going to get really entertaining.
UPDATE: Andy showed up with eight hundred bucks ($800). Court audio coming soon.
As everyone who has been reading this blog knows, Andy Esquivel is a deadbeat dad. He has seven (7) illegitimate children by at least three different mothers and he refuses to take financial responsability for any of them. The four he lives with are supported financially by their mother because Andy refuses to get a job. One was taken from him by the state and placed in protective custody (later adopted) and his two oldest kids have been cared for by their mother with absolutely no financial support at all from Andy.
A few years back Andy was arrested and forced to stand trial for failure to pay back child support in Colorado. Rather than pay the required fines and serve court ordered community service (too much like a job for Andy) he fled the state and now lives in Utah. Two separate cases were filed against Andy for back child support here, One in Davis County, where Andy originally settled, and another in Salt Lake County, where he fled to avoid harsh probation terms for the three felonies that are the subject of this blog.
As of this writing, Andy owes $24,184 in back child support (leniently calculated as if Andy had earned minimum wage for the first 18 years of his first two children’s lives). He has been making payments lately (no choice there since he’s collecting unemployment and the state garnishes those payments to satisfy past judgments from state agencies like ORS), but those have barely made a dent in the amount he owes. For more details, see this unemployment report which Andy filed with the court in November which shows that ORS is taking half of Andy’s unemployment.
Here are the case files for the two child support judgments against him:
Andy is somehow convinced that the child support case against him is part of a conspiracy orchestrated by this website. Nothing could be further from the truth. We didn’t have two kids out of wedlock, and we didn’t force Andy to ignore his financial obligations as a father to his two oldest children. This website in fact has nothing whatsoever to do with Andy’s child support woes, we just report them as a matter of fact. That said, here is a video link Andy recently posted of himself trying to talk his way out of his obligations:
In this video you can hear Andy trying to convince ORS that he sent them a check for $5,000. In reality, Andy never sent the check, he merely posted a picture of a check online and argued that he should get credit for the posting. Apparently, Andy doesn’t realize that posting a picture of a check and mailing it to the state agency responsible for collections are two entirely different things.
Andy also reveals in this video that he hasn’t had a valid driver’s license since 2012. No wonder he can’t find a job – it’s hard to convince an employer to hire you when you can’t even drive yourself to work.
It is a shame that Andy finds it so hard to come up with the money to satisfy all the judgements against him ($37,386.95 in total, a small fraction of the amount he’s stolen or neglected to pay), but it’s his own fault. If Andy Esquivel would simply get a job his life would be a heck of a lot easier. Unfortunately, Andy is allergic to work and refuses to obtain gainful employment anywhere. He’s full of excuses and lies, but sadly lacking in common sense.
Andy, here’s a hint for you (since I know you read this blog) – if you get a job, ORS might take a little more money, but it’ll be a much smaller percentage of your paychecks. Just go to work like everybody else. In almost no time at all, you’ll find that your victims are all paid back, the court is satisfied, and ORS might even cut you a break on your payments. Grow up and the world will work with you! Keep being a jerk, and it’ll only get harder to stay out of jail.
Those of you who have been following this blog for the last…I don’t even remember how long ago this started…anyway, Xtagged fans will wonder why I even bothered to post this because it’s so redundant. That said, another warrant has been issued for Andy Esquivel’s arrest. Ho-hum, what else is new?
The warrant was issued yesterday by Judge Connors because Andy neglected to show up for his January 10th case review hearing. Cash bail has been set at $5,000, which means Andy cannot bond out. He has to cough up $5,000 in dead Presidents or they’re going to lock him up until Judge Connors has time to ask him face-to-face why he isn’t complying with his court managed probation.
For those of you who don’t read this page often, let’s review how we got here: Andy plead guilty to two felony counts of securities fraud. He was sentenced to two five-year jail terms, which were suspended on condition that Andy comply with certain conditions of his probation. Those conditions included (a) getting a job and (b) paying fines, restitution, and interest. Andy was assigned a few probation officers, but he screwed that up by giving his PO the finger online. The court was lenient and allowed Andy to continue court-managed probation, but the terms were strict – pay $500 per month OR ELSE!!!
A hearing was set for January 10th to review Andy’s progress. Unfortunately, Andy has made no progress, so it was more than likely that Judge Connors would have greeted Andy with handcuffs and at least six months in jail. Andy could have shown up and plead poverty (after all, he’s currently collecting unemployment), but he chose to skip court altogether and take his chances. He is currently $1,550 behind on his payments to the court, which is a bad thing.
“The Defendant is not present and is $1550 past due on his financial obligations. The Court orders a $5000 cash only bench warrant for his failure to appear.”
Another review hearing has been set for January 17th, at which time Judge Connors will probably order Andy in absentia to serve a bunch of time in jail. He’s collecting unemployment checks right now, so it isn’t as if the state will have any trouble picking him up for his date behind bars.
Personally, I don’t know what Andy is thinking. This isn’t so hard – get a job, pay your child support, pay your fines, and pay your victims back. It’s only $500/mo. so I don’t understand why this is so hard. Andy’s life would be so much easier if he would just bite the bullet and get in line. Unfortunately Andy just isn’t willing to grow up.
As you can see below, Andy has responded to this post, both here and on Facebook. It’s pretty funny actually – on the one hand, Andy claims that he’s too broke to pay his fines and reparations because he doesn’t have a job, is collecting unemployment, and half his unemployment is going to pay back child support. On the other hand Andy claims to have a full time job working “graveyards” as his excuse for not showing up to court on January 10th.
Andy, you can’t have it both ways. Either you have a job or you don’t. For my money, I’m betting you’re unemployed. The fact is, you can’t collect unemployment if you are working “full time”, and you yourself admitted that you’re collecting unemployment, so…
I understand your dilemma. If you’re working, then you can afford to pay the court the money you owe. If you’re not working, you can plead poverty to the court, but you can’t afford to feed your family and you risk going to jail for a very long time. It’s a risky game you’re playing. I for one suggest you (a) get a job and (b) tell the court exactly where you are working (c) provide proof of your gainful employment and (d) start paying your fines. It’s the only way you’re going to stay out of jail.
Andy is apparently not smart enough to realize that he’s been convicted of two felony counts of securities fraud and that he was sentenced to up to five years in state prison per count. The court was incredibly lenient on Andy and in lieu of prison, allowed him to enter a program administered by Utah Adult Probation and Parole (AP&P). The conditions of his probation were simple; pay your victims back, pay some fines, stay off drugs, get a job, and basically become a functioning member of society. All that was apparently too much for Andres ‘Andy’ Esquivel to handle, and he’s on his way back to jail.
Andy refused to keep his AP&P appointments, he failed drug tests, he blew off mandatory psychiatric and substance abuse counseling sessions, he lied about his living arrangements (which he was required to report as a condition of probation), he failed to get a job, he missed promised reparations payments and of course he antagonized his probation officer via email and online…a really dumb move!
As a consequence, on June 6th Andy’s probation officer filed a scathing violations report with the court explaining (in detail) Andy Esquivel’s pattern of non-compliant behavior. The full violations report can be found here [PDF]. The violations report was followed by a cause report in which Andy’s probation officer frankly recommended that Andy’s probation be revoked and that he be ordered to serve time in prison. That recommendation was detailed in this cause report submitted by Roman Hentish immediately after the violations report [PDF].
Judge Connors concurred with the AP&P cause report and on the same day, signed this cause order requiring Andy and/or his public defender to appear before the court and explain why his probation should not be revoked and Andy should not be sent to prison to serve his two five-year sentences [PDF].
As a condition of his probation, Andy Esquivel agreed to re-pay his fraud victims. The amount he was ordered (and agreed) to pay was $13,000. To date, Andy has repaid $1,590…which is far below the amount he owes. Unfortunately for Andy, he was dumb enough to verbalize to AP&P (and this account is transcribed in AP&P’s report to the court) that he no longer agrees with the court’s decision regarding reparations and intends to drag out repayment as long as possible so that he can potentially get out of it. I know, right? What kind of idiot actually says that to an appointed officer of the court? So the bottom line is Judge Connors has now seen and signed documents which quote Andy Esquivel expressing utter contempt for the court and for his own promise to re-pay his victims.
So where does Andy go from here? Jail, most likely. I don’t think Andy will ever wise up and realize his life would be so much easier if he would (a) keep his mouth shut (b) pay his victims back (c) get a job and (d) stop scamming people. Why does Andy find this so difficult? Because he’s STUPID!!!
Update: Sentencing hearing delayed until July 12th @ 10:30am.
A $25,000 “CASH BAIL” warrant has been issued for Andy Esquivel’s arrest. The warrant was issued due to probation violations by Andy. “Cash Bail” means that Andy cannot get a bail bond for his release. He must come up with $25,000 in cash in order to stay out of jail.
This is a very serious situation. It means that Andy is subject to incarceration on sight by any officer in the state of Utah and he will remain in custody until he agrees to repay his victims. Even if he agrees to pay his victims back, he will remain in jail for at least 30 days plus the amount of time it takes for a judge to get around to hearing his case.
The progress report is most telling. In it Andy’s probation officer details not only Andy’s basic violations, but also his utter lack of respect for the law.
“A person’s behavior reflects their thinking, values and beliefs about themselves, others, and the world around them. Mr. Esquivel demonstrates a disregard for the feelings of others and a reduced ability to experience guilty shame. He is superficially charming and has shown a disregard for rules. He victimizes others to satisfy his own needs and expresses rationalizations for law violations.” – Roman Hentish, Supervising Officer
That is now in the official record and will accompany the recommendation by AP&P that Andy be returned to jail.
A judgement has been entered by the State of Utah onto Andy Esquivel’s record requiring him to pay $14,300 in fines and restitution for his Xtagged scam. Andy must submit to DNA, drug, and alcohol testing as a contrition of his probation for the next 36 months. He also needs to get a job. It’s been a long road, but Andy Esquivel was finally brought to justice – in no small part BECAUSE OF THIS WEBSITE!!! The conviction of Andy Esquivel is bitter-sweet in that only three of his numerous victims came forward to press charges (representing a little over 10% of the total money consumed by his various scams), but the results are very nearly the same. Andy’s mental infirmities and propensity for criminal behavior have been documented permanently for the record and future victims will avoid losses because of our efforts. Furthermore Andy’s existing victims have been publicly vindicated as Andy has admitted for the record that he is a pathological lying sociopath with absolutely no business sense whatsoever. After all the noise and smoke Andy made about a conspiracy against him, it’s a bit disappointing that in the end he admitted wrongdoing and avoided a humiliating public trial, but there’s always Castle and The Blacklist for entertainment so I guess I don’t mind. In the end Andy was arrested for assault, harassment, fraud, and sued for 18+ years of back child support…that pretty much sums up Andy Esquivel and his friends for the world (minus of course the drug use and alcoholism). You can read the final documents of Andy’s case here:
Steve Klemark, Allen Brady, Lasharielle Jenkins, and Ronald Dean Kelsay must all feel really stupid right now.
Andy Esquivel has plead Guilty to two felony counts of securities fraud! No matter what he says from here out about the “conspiracy” against him, the fact is he’s a criminal, a serial felon, and a crook.
The plea followed over six months in custody including a stint at the Utah State Mental Hospital where after treatment Andy was found competent to stand trial for his crimes. As part of Andy’s plea deal, a single 2nd degree felony count of securities fraud was dropped. Andy remains free on $10,000 bond pending his sentencing on October 7th.
Andy celebrated his release from jail by posting on Diigo and bashing those who have helped see him charged with his crimes. He’s tried to hitch his wagon to Mark Shurtleff and John Swallow by implying that somehow the conspiracy against him is related to their recent indictment. The reality of course is that Andy’s case is in no way related to anything but his own criminal activity and that there is no ‘conspiracy’ against him, only a desire to see him pay for his crimes.
The maximum penalty for each of the two 2nd degree felonies Andy has now confessed to is 5 years in prison. Given Andy’s behavior prior to and during his trial, the victims and the authors of this blog obviously hope that Andy is sentenced to the maximum. He’s certainly proven that he has absolutely no remorse for his actions and will continue his criminal activity as soon as he is free.
I will post the audio from Andy’s competency hearing as soon as it arrives. In the meantime, stay tuned for more psychotic rants from this pathological lying sociopath and the brainless minions who worship him.
Just in case there was any remaining doubt about whether Andy Esquivel is crazy and his various businesses were all thinly disguised scams, here’s the latest post on WiserTechnology.com. I haven’t checked that website in ages, but did today just for kicks. This image is all that is left of Xtagged, Wiser technology, and all the hard work of lunatics like Allan Brady, Shar Jenkins, Steve Klemark, and the rest. This is what’s come of what was supposed to be a milti-billion dollar venture started by a man now confined to a padded cell in a state mental hospital. THIS IS IT!!!
The word ‘Anti-climax’ just doesn’t do this image justice…
Andy Esquivel has been keeping himself busy writing letters from jail. He’s now been moved to a mental hospital, but it’s still interesting to see how Andy kept himself busy. Below is a link to several of these letters – including one from his “spouse” (girlfriend actually) and one complaining about his newest public defender. The letters are hard to read, but still fun.
Incidentally, I’m curious what Andy’s personal biographer Ron Kelsay is thinking right now. I’d give $50 bucks to see the look on his face when he reads these letters from jail and realizes that his documentary is never going to sell any tickets. I wonder what Allen Brady is thinking now that his dream of moving into a $2 Million dollar house with the proceeds from some lawsuit over Xtagged evaporate. I wonder what Steve Klemark is thinking now that he realizes he drove his wife to the brink by chasing a drug addicted con-man around for years. I wonder what Shar Jenkins is thinking right now, realizing that his dream of opening a night-club in Park City have vanished. Guys, you’re welcome to post your thoughts – we’re all dying to hear form you!
Update: I spent a lot of time trying to understand these letters and after way too much time immersed in Andy’s gibberish I realized that int he second (or third) letter, Andy is actually trying to convince the judge to recuse himself from this case and grant Andy a change of venue with a new judge. If that’s not a sign of pure desperation, then I don’t know what is.
Andy Esquivel has been moved from Davis County Jail to a mental hospital. He will be treated for his delusions and psychosis, then re-evaluated for sanity in August. If at that time he still thinks he’s a genius inventor who’s the target of a conspiracy to cost him millions of dollars and take his company away, then he’ll continue the psychiatric treatments until he’s cured.
In the meantime, someone should commit Allen Brady, Shar Jenkions and Steve Klemark, since they obviously suffer form the same delusions.
Posted on March 3, 2014 in Andy Esquivel's Scams Andy's Threats Andy's Videos Buzz/Wiser Karma Cause Trial Updates Wiser Car Cover Wiser E-Cigarettes Wiser Eyes Wiser Helmet Wiser No Phone Zone Wiser Technology Xooplay Xtagged
Just when you guys thought Andy would never post on YouTube again (because he’s in JAIL), Andy defies the odds and manages to get a video posted anyway. Boy, this guy REALLY doesn’t know when to shut up!
In this latest video, Andy convinces his girlfriend (he’s now using me as the excuse why he never married her in spite of the fact they have three kids together) to put him on speaker so she can record him from jail and post online. It sounds like he’s calling from the common yard at the Davis County jail because there’s lots of commotion around him.
Andy explains that he’s in jail of his own free will. That he asked to be sent to Jail on January 7th because ‘the prosecution has postponed his trial six times’…which makes perfect sense, right? Andy tries to put his own spin on his February 11th hearing claiming that he’s being committed to a state mental hospital because the Judge wants to prove he is sane, not for restoration of sanity because he is insane as is actually the case. He rambles on and on about the conspiracy against him, his million dollar lawsuits, all his inventions – basically all the delusions that are the reason he’s being held for restoration right now in the first place. He demonstrates in the space of five minutes that indeed the psychiatrists are absolutely correct – he is not mentally competent to stand trial and he is badly in need of psychiatric help.
Half-way through the video, Andy is interrupted by an inmate named “Boss” who tries to explain that in fact the fight he was just part of was not his fault and was nothing for his wife to worry about. The guy Andy got into a fight with should never have been let out of isolation because, like Andy, the inmate he fought with was is mentally disturbed. Andy also brags that he’s lost a lot of weight in jail (I guess he’s sensitive about his weight) and that jail isn’t so bad after all.
I never thought I’d live to see the day when Andy Esquivel is posting psychotic rants from behind bars, but here it is. He has no idea why he’s there, no idea what he needs to do to be released, and shows no signs that his delusions have abated. Between us, I think Andy is going to be incarcerated for a very long time, because he’s never going to admit that he’s a delusional mess and needs help. The more he resists treatment, the longer he’s going to remain in state custody and I personally believe that’s a good thing.
I wonder what Allen Brady, Steve Klemark, Shar Jenkins, and Ron Kelsay are thinking right now? “…Boy, were we stupid!”
The motion hearing scheduled for yesterday was postponed until August 7th. We would have posted this sooner, but we wanted to see what Andy would post after he showed up for court and found out there was no hearing. Usually Andy goes ballistic and writes a 50 page email ranting about conspiracies and the like whenever there’s a postponement like this one. In this case, Andy’s annoyance at wasting his gas to drive to court first thing in the morning hit with a ‘squish’ and no mass email was sent out to “the media” blaming the delay on corrupt prosecutors or shadowy government agencies looking to stop him from saving the world. As always, the latest court updates (including this postponement with details regarding the reason for the delay) can be found here [PDF].
In the meantime Andy figured out how to file a discovery motion and did so on Monday. He even went to the court with Allen to file the document himself, which is impressive. Too bad he gave the court a fake phone number or he’d have known that there was no court on Tuesday. The postponement was filed on Monday while Andy was int he building, but when the clerk tried to call Andy there was no answer. Andy seems very eager to get his hands on the prosecutor’s witness list, and is now referring to all his fraud victims as “TRAITORS” on a regular basis.
Nothing else new to report. Andy’s been rather quiet since getting sentenced in Colorado to serve 64 hours of community service for failing to pay back child support. Andy is so intent on not working that he even claims to have moved back to Utah to avoid the sentence. Don’t worry Andy, it’ll be waiting for you when you get out of prison and return to Colorado.
Pathological lying sociopath and convicted felon Andy Esquivel, who is representing himself in his own securities fraud trial, has published his witness list for trial. We’re sharing it here to help others understand how crazy Andy really is and to display the full extent of Andy’s criminal activity. The words below are Andy’s with the truth in brackets.
Daryl Acumen: he recommended law firm look at the seven email video Allen fired Daryl from Xtag in 07 to hire his mother Rebecaa Dunn as Xtagged CEO, Daryl then started this conspiracy with Ryion etc. #0069 [The fact is I never worked for Xtagged, so I could never have been fired. That said, I can’t wait to testify against this lunatic and to explain to a jury how crazy he really is…if he’s dumb enough to put me on the stand.]
Jason Webb: Xtag patent/corps attorney he told all Xtagged owners he could only sell securities #0070 [Jason was found to have acted improperly by convincing certain fraud victims that Xtagged was a solid investment. His law firm faced disciplinary action by the Utah Department of Securities for the actions of Webb, which violated securities law.]
Saeed Kermani: started Single & Dating/patent 06 & 07 #0071 [Andy’s old boss at Comcast]
Mehraz Sheikhi: was paid back $10,000 just as Ryion B. was paid back $2,500 through Logan Laws #0072 [One of Andy’s fraud victims]
Logan Laws: Logan & Ryion teamed up for $5,000 & after Logan begged Andy to separate them due to Ryion Butcher being a A—hole these are Logan’s words about Ryion to Shar Jenkins & texts #0073 [One of Andy’s fraud victims, eager to testify against Andy]
Steve Klemark: Wisertechnology.com CIO I have attached his Denver Halo P.D ID Steve Bought Xtagged in 2009 & he made Ryion B. $5,000 money order… Steve stop going with Andy to court in Utah because Steve said prosecutor J.C.Y. & Mr. Holje was conspiring. Steve made two videos… #0074 [Low-level IT guy at the Denver PD who supposedly purchased Xtagged for $24 Million dollars.]
Shar Jenkins: not only paid Logan Laws $2,500 money order he offered everybody buy-outs just as Steve K. did and Allen Brady and many more… #0075 [One of Andy’s brainless minions who pretends to be some sort of marketing guru.]
Kirk Yuhnke: Fox13 now Denver Fox31 my first prime time interview for my invention of car tags I offered Kirk Yuhnke 1% ownership of system Sindy was witness look at attachment file D.I.D #0076 [A Fox News reporter who doesn’t know nor care who Andy Esquivel is.]
Sindy Manzano: worked for Xtagged 06 to present in 05 the Deseret News did story on Sindy Manzano D.I.D file #0077 [Andy’s live-in girlfriend and mother of three of Andy’s six illegitimate children. She lives on welfare because she claims she can’t work due to this blog.]
Trevor Riley: Xtagged Inc Bank manager and helper his email FB attachments are to his attorney #0078 [A random bank clerk who Andy pretends has something to do with this case.]
Allen Brady: Wisertechnology.com CEO I think Allen has told you plenty and gave you his paper work Allen and his family attempted many time to buy-out the plaintiffs they just attacked Allen and his mother… #0079 [Andy’s mindless puppet who is illiterate and an admitted drug addict.]
John Steer: He was second victim at hero’s computers 09 in Bountiful, John can verify conspiracy John also made up paperwork for Ryion Butcher & Taylor he was second in command at Xtagged #0080 [Andy’s cousin and accomplice in most of Andy’s fraudulent schemes.]
Jake House: ran our Bountiful Sushi shop with John Steer Jake is co-owner of Xtag & has exact paperwork as Ryion Butcher and Jake has made video testimony online against Ut plaintiffs #0081 [Another random co-conspirator of Andy’s.]
Jeff Parker: My first partner we bought first system stickers together Jeff has exact paper as Ryion and was at trial Feb, 26, 2013 #0082 [A random guy Andy found to support him at court because everybody else had finally figured out Andy was a fraud.]
Daris Garner: My third partner 06 after Jeff Parker we all worked for Saeed K. at Comcast, Daris has the same paperwork as Ryion B. and was at pretrial Holje would not speak to Daris nor Albright… #0083 [Another Xtagged fraud victim.]
Andre Rawka: John Steer gave Andre 1% ownership free for all the media Dre brought to Xtagged and yes it was the same paperwork as Ryion’s. Dre is now a climbing star in Utah #0084 [Some local rapper who Andy convinced to endorse his various scams for a price.]
Zachary Edwards: John Steer gave 1% ownership to Zac same reason as Dre above Zac can also verify conspiracy attacks on Xtagged.com, Wiser e-cig, Wisertechnology.com, Karmacause.com etc. #0085 [Another Xtagged scam victim.]
Taylor Jones: John Steer gave ownership to Taylor from our Sushi shop in Utah yep same paperwork as plaintiffs. Taylor then brought our attention to Jason Cowdin for Xtagged real estate app, #0086 [Another Xtagged scam victim.]
Jason Cowdin: Taylor Jones got ownership for Jason C. from John Steer & I yep John gave Jason same paperwork as plaintiffs. Jason C. was responsible for big VC meeting one with his mentor that stated “Andy is not about money” then second meeting with Social Sam people. #0087 [Another Xtagged scam victim.]
Brain Davis: Mel & Brian 3% ownership of Xtagged Brian’s with Bountiful Brian Davis paperwork. #0088 [A real-estate investor from Ogden who refused to deal with Andy because Andy was never able to provide evidence that he was a legitimate.]
Chue Berriel: of CEA Property’s Investments llc co-OWNER of Xtagged since 2008 Daryl & Ryion tried to manipulate Chue by contacting her son Edward Gonzales as court has been in progress look at Chue’s statement on LinkedIn #0089 [Andy’s aunt who was scammed out of tens of thousands of dollars. Andy spoofed her identity on LinkedIn to pretend that she wasn’t on the verge of turning him into the police.]
Ladd Quayle: plaintiff Kyle Cluff gave ownership to Ladd Q. you have copy of Kyle’s email to Andy telling Andy to give Ladd ownership of Xtagged here’s Ladd’s latest email April 8 2013 below #0090 [One of Andy’s victims who is eager to testify against him at trial.]
Professor John Richards of B.Y.U: he would not meet until our paperwork & no scam was confirmed Ladd has all emails from Steve klemark because Steve Bought Xtagged Dec of 2009… #0091 [Met with Andy once and saw through his garbage within minutes and refused to meet with him ever again.]
Rebecca Dunn: Xtagged.com C.E.O 2008-2011 I have provided seven emails dating 01-25-08 to 03-02-08 that proves all you have copies of our Xtagged CEO Final warning letter. #0092 [Andy conned Rebecca into thinking she was CEO of his various scams. She eventually realized that Andy was a fraud and turned over piles of evidence against Andy to the courts. She will not be at trial.]
Andrew Couch of Bump.com: #0093 Andrew told all Xtagged workers “We are going to put Andy in prison no matter what” Andrew conspired with Daryl A. & Ryion B. to smear/slander Xtagged and then re-filed patent in May of 2010, Andrew’s & Andy’s 2007 [Principal at Bump.com who has been harassed by Andy for years. Has no interest in Andy or this case.]
Jonathan King: ex-FBI agent I meet with in 2009 plaintiff Kyle Cuff arrange meeting I told him about The smear/slander conspiracy back in 2009 and I gave him 40% ownership of Xtagged… #0094 [iSafe executive who knows better than most how much of a fraud Andy is. The company came very close to suing Andy Esquivel for compromising their name by claiming that his scam was endorsed by them.
Final witness Leonard Martinez & his assistant: Allen Brady and I gave them $2,575.00 in 2010 to pay Plaintiff Chris E… Leonard can also confirm smear/slander conspiracy 2010 through 2013 #0095 [Leonard Martinez dumped Andy Esquivel as a client years ago because he realized that Andy was not only a fraud, but also crazy. Leonard was the first of Andy’s string of lawyers to abandon Andy as a client in disgust.]
On April 2nd (a week ago) we posted here on this blog an email in which Andy Esquivel basically thumbed his nose at the Davis County Court and openly refused to comply fully with a motion for reciprocal discovery which the prosecution filed last year. The motion was reiterated last month in a hearing in which the court went so far as to give Andy a deadline for compliance with the motion. In non-legal terms, Andy was required to hand over all evidence to the prosecutor, including witness names, addresses, phone numbers, expected testimony, any exhibits he intends to present at trial, etc. In response, Andy sent an idiotic email to the prosecutor claiming that he wasn’t going to fully comply with the order because 11 supposed “owners” of Xtagged who are supposedly going to testify at trial “don’t trust you guys!”
In response to Andy’s failure to fully comply with the prosecutions motion and to Andy’s ridiculous (but typical) email, the State of Utah filed a Motion to Compel [PDF]with the court, demanding that Andy immediately hand over a full witness list, each witnesses relationship to the defendant (ie: Jobita Berriel – Andy’s Mother, Sindy Monzano – Live-in Girlfriend, John Steer – Cousin, etc…) so that the court can determine their objectivity and potential prejudice, contact information for each witness so that Davis County Prosecutor Nathan Lyon can get depositions from them if required, AND ALL DOCUMENTATION OR EXHIBITS Andy is pretending to be holding out on until trial. If Andy fails to comply with the pending court order, he could be barred from presenting any such evidence in court on June 12th.
The Prosecutor attached a copy of the court order explaining what Andy needs to provide in exhibit A of the motion and also included a copy of Andy’s stupid email as exhibit B. This is the second time one of Andy’s rambling emails has been admitted as state’s evidence and made a matter of public record to show what a brainless moron Andy is for future reference in court.
How dumb can a criminal get? Hasn’t Andy learned yet that he can’t play games with the court and get away with it? Don’t be stupid Andy, hand over all evidence to the court immediately – unless of course you don’t actually HAVE any evidence and this is all just you pretending that you’re Perry Mason.
Of all of Andy Esquivel’s fake inventions, this one has to be the most pathetic! It’s a bicycle helmet that Andy bought from Walmart, photographed, added a sticker to with a cheap photo editor, and then tried to pass off as a serious invention that he claims to be donating to a dead child in Colorado…sick! Here’s the product description in Andy’s own words.
There are two Buttons on the helmet: (1) MY & (2) SUNSHINE. As the child pushes the buttons together, the lock mechanism that holds the helmet to the bike seat releases. Both buttons must be pushed at the same time. When pushed correctly, a tune to ‘You are my sunshine’ plays as the child is putting on the helmet . A built in sensor then recognizes that the helmet is in place on the head of the child and turns the music off! This was developed for and will be donated to Karma Cause Erica Forney Foundation!
Using the death of a child to pump up your own scams is disgusting. Doing so in this cheap a fashion is just plain wrong. Andy Esquivel should go to jail for this disgrace alone, but the jury likely won’t hear the story because Andy will be too ashamed to share.
Under the new YouTube profile “UtahVenger” (which must be some kind of super-hero alter-ego or something), Andy has released a “psychedelic” new music video. The video starts off with Andy going over the evidence he’s compiled to comply with the March 26th discovery deadline in his securities fraud case. He talks about Rebecca Dunn’s stack of evidence, and then mentions a man named Brian Davis, who Andy admits he tried to scam out of $100,000! Next Andy cuts over to a scene where he’s driving to Farmington Utah to deliver a stack of papers to his former attorney and then the music starts.
The camera is shaky, the music is funky, it’s altogether like something out of the 1960s. Andy spends the rest of the music video showing screen shots of his various Diigo posts, which collectively point to a vast conspiracy to endanger children by stifling Wiser Technology in it’s good and noble work to save humanity. Andy posts the following in support of this claim:
Amazing the end music is genius “Foster The People – Pumped Up Kicks [LYRICS]” Media this highlights my email to you & the authority’s that the stall tactics Albright & Hurst were engaging in kept Wiser technology ideas from saving children’s lives, I emailed some of you media the idea to prove, it was a donation to CHS! The song is warning for kids to run for now because WT has its hands cuffed or tied by Utah Davis court. This is truly Karma Cause “Desperation Breeds Creativity”
I’m actually kind of curious as to whether this “Wiser Technology can save kid’s lives” thing is part of Andy’s defense? The irony is that if Andy can convince a jury that Wiser Technology could have saved the lives of many children were it not for the Xtagged conspiracy, he might actually win enough sympathy to force a not-guilty verdict. Hopefully Andy doesn’t catch on to that fact and sticks to his “Bump.com wanted to steal Xtagged” story.
In spite of the fact that Andy Esquivel has now lost two attorneys because of his propensity for mouthing off online, our little friend from Colorado still hasn’t learned his lesson. Andy is now posting on YouTube and claiming that I’m somehow going to “prison” in connection with HIS securities fraud case. Just for fun I went ahead and called Andy out by pointing out that in fact he was the one facing fraud charges and the potential of jail time not me, to which Andy responded:
“Yeah Andy is in prison right ‘Bountiful BOY'”
Apparently, Andy has forgotten that the only reason he’s not in prison right now is that his mother bought a $10,00 bond through Surety Bail Bonds to secure his release. Because Andy has such a short memory and is getting more and more cocky about being able to walk the streets in spite of his recent incarceration and upcoming criminal trial, I thought I’d go ahead and post the details of his bail bond (which is a matter of public record) for our readers to inspect and enjoy.
As you can see from these documents obtained from the court, Andy’s mother Jobita Berriel secured the $10,000 bond for her son’s release with a down payment of $540 in cash on 7/29/11 and the promise to pay the $500 balance on 8/6/2011. Without this bonding agreement with Surety Bail Bonds, Andy Esquivel would still be in prison awaiting trial. Since Andy has no money and no job, there is no way he would have been able to come up with the money himself.
Enjoy freedom Andy! Unless you’re able to prove the existence of an Xtagged conspiracy, it might not last.
In a recent email, Andy Esquivel tries to explain to his followers why he’s broke. According to Andy, it all my fault and it has nothing to do with the fact that he hasn’t bothered looking for a job in the last 10 years. He also continues to promise easy riches from a huge “lawsuit” that’s eminent, even though Andy can’t even afford an attorney to represent him in his criminal trial.
“FYI especially all of you that was helping Xtagged in 2009 we do have a multi-million $ lawsuits against Bump & scam.com we all should have been living good by now it’s because of Daryl helping bump slander Xtagged you were cheated. when you call please let us know the movie producers wants to interview all who call officer Metcalf in American Fork thx.”
As you can see, Andy is also still clinging to the fantasy that he’s the subject of an upcoming Hollywood blockbuster that will rival “The Social Network” in US ticket sales. He’s also supposedly orchestrating a huge criminal case against me in American Fork for exposing all his businesses as scams and costing Utah taxpayers billions of dollars in tax revenue.
In another part of he same email, Andy pretends to be Shar Jenkins claiming “I will be monitoring emails for Andy while he’s on a month business trip thank you all!” It funny, but when I am on business trips I monitor my own email. I guess Andy likes pretending that he’s too rich and too important to check his own messages. I wonder where And’s pretending to be?
And in other news Andy claims to have developed an iPhone app to expose corrupt lawyers like the ones who kept encouraging him to take a plea deal rather than going to trial. I have an iPhone5 and I couldn’t find any such app in the iTunes Store, but Andy provides a fake link to a non-existent page to prove that it’s actually legit. Maybe Andy will provide a screen shot of this fake app for us to share…then he can explain to the world how he can afford to develop such sophisticated software when he can’t even afford to pay child support.
A jury trial date has been set in the felony securities fraud trial of Andres “Andy” Esquivel. At the pre-trial conference on February 26th, Andy waived his right to counsel and informed the court that he intends to represent himself. A final pre-trial conference has been set for May 14th, followed by a 3-day jury trial on June 12th – 14th. Judge Connors will preside over the trial.
In a preview of what is to come, immediately after the trial Andy Esquivel filmed a crazy, ranting video immediately after the hearing in which he insists that the trial will never happen because the prosecutor keep stalling the case. He also introduced star witness Jeff Parker, who nobody has ever heard of. Speaking on the subject of Tuesday’s hearing, Andy Esquivel wrote:
“…Jeff Parker shows at court – YouTube. Holje & Albright are both connected to CORRUPTED PROSECUTOR J.C Ynchausti that covered up the attempted murder of John Steer when he was struck in the head five times by a que ball at hero’s. This is why I told judge Connors at pretrial I can not trust attorneys“
As soon as the audio transcript is available, we will post it for everyone to see.
Andy has released a new video introducing Jeff Parker, a former investor in the Xtagged scam who is either not smart enough to recognize the fact that Andy is about to be convicted of fraud or who simply doesn’t care. This video was shot (by Andy because apparently Ron Kelsay has given up on his documentary featuring Andy and has stopped following Andy to Utah every other week) yesterday immediately after court. It includes claims by Andy that the court refuses to tell him who asked for a delay in the trial (which is a matter of public record), and that Albright never interviewed Jeff Parker who he claims is an essential witness in his defense.
Anyway, Andy goes on to talk about Dakota Iverson, who has recently learned about these criminal proceedings from this blog and has started attending the pre-trial hearings out of curiosity. Andy attempts to dilute Dakota’s testimony that Andy ripped him off of wages at Xtreme Sushi by accusing Dakota of “stealing” his “$2,000 basketball.” I personally think that’s one of the funnier claims that Andy has made in his defense.
A $2,000 basketball Andy? Seriously? Maybe you should include that in yoru courtroom testimony…see how that impresses the judge.
I was surfing the web today and I stumbled across a series of exceptionally well made Andy Esquivel fan videos that I think you will all enjoy! In case you lose the link to this post, a permanent link to these videos is now included in the fan videos section under videos in the main navigation above.
After discovering our new Wiser Technology Scam blog, Andy Esquivel threw a lug-nut and sent the following hilarious email. Notice he send this email to William Albright’s investigator even though William Albright is no longer handling Andy’s criminal defense. Andy’s big point is that the Utah Department of Securities asked for a the trial to be rescheduled to avoid calendar conflicts with other trials. Andy takes extrudes from this a vast conspiracy theory that somehow ends in his eminent acquittal…go figure.
Re-posted here without edits (except to reduce the font size from the XX-LARGE that Andy likes to use for emphasis):
From: “Karma Cause” <firstname.lastname@example.org>
Date: Feb 23, 2013 7:22 AM
Subject: Daryl & Adam have started again…
To: “Utah Investigator” <Carl@landofhealth.com>, “MOM2” <email@example.com>, “A sweet” <firstname.lastname@example.org>, “email@example.com” <firstname.lastname@example.org>, “Adam Platt” <email@example.com>, “Alll” <firstname.lastname@example.org>, “law firm” <email@example.com>, “leo” <firstname.lastname@example.org>, “shar” <email@example.com>, “John Steer” <firstname.lastname@example.org>, “chue berriel” <email@example.com>, “Jobita B” <firstname.lastname@example.org>, “email@example.com” <firstname.lastname@example.org>, “Steve K” <email@example.com>, “ron” <firstname.lastname@example.org>, “Brian Doubleday” <email@example.com>, “firstname.lastname@example.org” <email@example.com>, “Talor” <firstname.lastname@example.org>, “Daris Garner” <email@example.com>, “j_park32” <firstname.lastname@example.org>, “sis2” <email@example.com>, “Jason Webb” <firstname.lastname@example.org>, “Jason Webb” <email@example.com>
Cc: “news 1” <firstname.lastname@example.org>, “news 2” <email@example.com>, “news 3” <firstname.lastname@example.org>, “news 4” <email@example.com>, “news 5” <firstname.lastname@example.org>, “news 6” <email@example.com>, “adam5news” <firstname.lastname@example.org>, “NBC Cal” <Tony.Kovaleski@nbcuni.com>Xtagged system is worth billions:“How would you call a self driving Taxi or Google car, punch in the plate number then it would return to your phones gps taxi area” just like the long rangers horse.
http://garythebus.blogspot.com/ <— Here they go again FYI Adam Sweet had me arrested to keep me from seeing the SEC judge ask Allen & Steve we recorded Adam Sweet lie over and over he told Allen he had never talk to him Allen goes off on Adam Sweet, Adam called us for meeting after the SEC judge I recorded it all! I have also published it all! FYI we have sent this to all our family members Allen is on speaker phone as we speak he is sending it to his family also I advise all Xtagged owners due the same immediately.Adam Sweet Lied! Adam had to have told Davis prosecutor they could not make trial.To buy more time and get trial continued!
Shar & Allen were told by Thomas Brady Adam Sweet will not be testifying as a matter of fact Thomas told Shar Adam Sweet should have never been at the pretrial.This video below Shar talks about his meeting with Utah SEC Allen Brady Thomas Brady & Adam Sweet:
Andy’s on a posting and email rampage after the creation of our new Wiser Technology Scam blog at Blogspot.com. He’s been posting replies and sending emails to supporters trying to win sympathy and make himself look less insane ahead of trial. Here’s a sample of what he’s posted and what I have replied:
AndyFebruary 23, 2013 at 6:01 AM
Your such a coward Daryl and you know this is all recorded. Leonard told us everything he knew Xtagged system was worth “millions & billions” just as you stated Daryl & Shar is witness to that, why would you state that, Allen Fired you in 2007 you had nothing coming and your mom gave you a chance to come back you told her to F–K OFF… you will go to prison for helping Andrew we all will make sure of it! Fyi Daryl’s email just got another notification!
Daryl AcumenFebruary 24, 2013 at 12:51 PM
1. Xtagged isn’t worth anything, much less “millions & billions” of dollars. What Shar Jenkins heard as I came off the elevator at your harassment trial in 2012 was the tail end of me explaining to my brother-in-law why so many of your followers were dumb enough to follow you all the way to Utah for a criminal hearing. What I said to him was “…[Andy has] convinced these brainless monkeys that if they continue to follow him around the country like a heard of infected cattle, he’s going to be acquitted of all fraud charges and that they’re all going to be worth ‘millions & billions’ of dollars.” One of your brainless monkeys happened to be standing at the elevator door as it opened and I finished my sentence and, having no brain, came to the ridiculous conclusion that I was telling someone that I thought your worthless Xtagged website was worth “millions & billions of dollars”. I have the entire conversation recorded because I took the precaution of keeping the Sony voice recorder in my pocket turned on while I walked out of the courtroom where you begged the judge for more time – just in case you violated your no-contact order and I needed to provide evidence of such to the police.
2. I never worked for Xtagged or any other such scam you’ve invented, so the idea that I was ever “fired” from one by Allen Brady is laughable! I’ve had a very lucrative career for the last few decades and I wouldn’t have accepted a job offer from a moron like you if you offered me the world as a signing bonus. What Allen Brady and I DID talk about over drinks at the Playground in 2007 was whether or not I thought you were a scam-artist. Allen was having second thoughts about working with you and expressed his doubts about your legitimacy at the back bar while I we waited for nobody to show up to some promotional event you begged me to attend. I told Allen that I wasn’t sure if you were legitimate or not, but that he should be patient with you. I said that even though I’d already determined that you were probably completely full of crap and that your little “Xtagged” venture would go nowhere because I felt sorry for Allen and I didn’t want to crush his hopes right there at the bar. Years later at the dinner table with his mother, I told him the truth.
3. My mother never asked me to join Xtagged. In fact, when I found out from my father that she’d told him I was leaving my job to join Xtagged in 2010, I laughed historically and assured him that not only wouldn’t I ever consider such a move (because I was convinced by then that you were a criminal and I love my job) but that I hadn’t even spoken to my mother in months to receive such a solicitation in the first place. The bottom line Andy is that you haven’t stolen enough money to pay my salary for one year at any start-up ever managed to invent…and that’s saying a lot because you’re a pretty good thief.
Why don’t you spend a little less time worrying about what I do for a living and a little more time looking for a job for yourself.? I hear McDonalds hires people like you – with a note from the state that says you’re not dangerous.
AndyFebruary 22, 2013 at 6:37 PM
Daryl your going to prison… cat got your typing fingers!
Daryl AcumenFebruary 24, 2013 at 12:57 PM
I’m not the one on trial for three felony counts of securities fraud carrying possible jail time, Andy. The likelihood that I’m going to prison for your criminal activity is exactly ZERO!!!
AndyFebruary 22, 2013 at 3:40 PM
Bwahahahahahahah! Its over DDDaryl your going to prison. John Steer ordered this equipment not I. Daryl Herpes Acumen stated by his mother look http://rebeccaondaryl.blogspot.com/ is so desperate he will try anything to manipulate you all just like the pic above Daryl’s wife Shirley was big METH head back in the day and a lot more… What DDDaryl does not show you is the fight that’s why my shirt is ripped in pic above. Daryl why don’t your own mother talk to you? Rebecca’s last statement:
“911 info from Rebecca Dunn herself, MR.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 Daryl, in the end Andrew, Ryion and Ladd would blame the nxxxxx”
John Steer can you confirm this bro! www.DarylAcumen.co
Daryl AcumenFebruary 24, 2013 at 12:11 PM
…um, yea. So anyway, let’s get some facts straight, shall we?
First of all, we have reliable testimony (from the mother of your two oldest kids no less) that YOU are the one with Herpes, Andy Esquivel. We also have it on reliable authority (USA-vs-Esquivel) that you are the one with a history of METH addiction. Your shirt is probably ripped in the picture above because you were in the midst of a cycle of domestic abuse, which is also well documented (Case#044901546 Domestic Abuse).
As for my mother, the fact is I haven’t spoken to her in years and neither have you. If you HAD spoken to my mother recently, you would know that she is in no condition to testify at your preliminary hearing on the 26th, as you assert in several of your blogs, or at your upcoming felony securities fraud trial. Every time you pretend to still be in contact with my mother, you make yourself look more and more silly – which is a hard thing to do considering you already look like a stooge. Also, my mother would never use the “N” word, even in the third person.
You’re a very entertaining soul Andy Esquivel, keep it up! I’m sure you will be the life of the party in jail.
John SteerFebruary 22, 2013 at 5:35 PM
WOW REALLY! This is John, every word out of Daryls mouth is a lie and needs to get his facts straightened up before he goes posting absurd blogs all over the internet! But dont worry, everything and everyone will be in place here very soon! Keep tryin Daryl, your effort is very hillarious! 😉
Daryl AcumenFebruary 24, 2013 at 11:45 AM
You’re the hilarious one John. You cling beyond all reasonable hope to the idea that your broke, unemployed, convicted felon of a cousin who’s under indictment for three felony counts of securities fraud (each of which carries the potential for serious jail time) will by some miraculous stroke of luck be acquitted at the last possible moment and that you and the rest of his mindless cronies will somehow become instant millionaires. In my book, that makes you an idiot.
Everything I’ve posted about Andy is backed up by reliable (usually sworn) witness testimony and/or certified public records released by a court of law. In most cases, including the one which you are responding to, I actually go to the length of posting scanned copies of the actual court documents which are the sources of my information. In the meantime, I’m accused by people like you, who among other things have been known to extort free labor from high school kids to line your own pockets with extra cash, of spreading “lies”?
Seriously? On what basis do you make that accusation?
Let’s review for a moment what constitutes a fact: A court judgement on behalf of a reputable corporation against a named defendant is a FACT!!! The judgement above contains Andy Esquivel’s name, not yours, which makes your opinion on the matter irrelevant.
When I say that Andy Esquivel is “unemployed”, I base the assertion on the FACT that the Colorado and Utah Departments of Recover Services have been unable to verify his employment in order to attach his wages for back child-support, or even verify any employment in the last ten years to estimate his liability.
When I say that Andy is broke, I base the assertion on the FACT that Andy is about to file papers with the court certifying himself “indigent” and in need of the assistance of a court appointed public defender (if he hasn’t already).
When I say that Andy Esquivel is a convicted felon, I base my assertion on the outcome of case #881000871 and #881919199 on which Andy Esquivel was convicted of felony burglary charges…and on the rest of his lengthy criminal record.
When I say (and I haven’t for some time, but let’s get this out of the way while we’re on a roll) that Andy Esquivel is a METH addict, I base the assertion on drug tests and expert testimony in federal weapons case USA-vs.-Esquivel in which Andy was found to have had significant amounts of METH in his system consistently for a period of some years.
So tell me John, on what basis do you make the ridiculous assertion that “every word out of [my] mouth is a lie?” …and please note that the words of a pathological lying sociopath don’t constitute ‘reliable’ evidence in any reasonable person’s mind, so you’ll have to think for yourself for a change.
It’s always amusing when someone as ignorant about technology as Andy Esquivel pretends to be a tech guru! It’s even more hilarious when someone of Andy’s technological ineptitude gets excited and starts showing off his ignorance to the world.
Several months ago, Andy Esquivel posted online charts showing the number of “requests” his various webstes were getting. Andy made the posts with much fanfare (devoting huge patches of real-estate on his homepage to the data) and each post was accompanied with varying proclamations to God and assorted Hail Marys and Amens. It almost broke my heart to have to reveal to Andy via a post on my Xtagged Scam thread that a “request” means nothing in the world of web analytics where I’ve made my living for the past two decades, and that every page on his various websites fired anywhere from 10 to 30 such “requests” every time a page was loaded. I explained that the tens of thousands of “requests” Andy was seeing on his various websites probably actually only translated into a few hundred real page views after bot traffic was discounted and his own views subtracted from the total.
Well, it seems Andy got the memo and has now returned bolder and wiser than before (no pun intended). Today Andy posted new numbers for his various blogs showing that in the past year, his seven most trafficked websites have generated a whopping 6,734 page views in total (combined) traffic! He even adds the annotation “WOW!!!”
Now, I’m not going to break out the ruler and try to get into a “who’s bigger” contest with a sociopath. The fact is, it doesn’t matter how much traffic Andy’s websites generate vs. mine because we’re reaching different audiences. Andy’s websites are geared towards himself, his girlfriend, Allen Brady, and the few people in this world who haven’t yet figured out he’s nuts. My websites are geared towards people who would otherwise take Andy seriously and need to be warned to stay away.
That said, I feel compelled to point out that our humble little Xtagged.co blog has generated 6,610 “real page views” this month alone…and the month isn’t even over yet. That number of course excludes 4,905 pageviews served to bots since February 1st. In other words, we’ve generated nearly as much traffic in the first two thirds of February than all of Andy Esquivel’s blogs generated in the whole of 2012 and for the first two months of 2013. In January Xtagged.co served 10,504 page views during the 5,393 visits made to the site by 1,058 unique visitors (real people). While those numbers pale in comparison to the 600k – 750k page views my old PartyUtah.com website served up every month and is nothing like the over 100,000 page views we served up on the last single day I owned the site, it’s still pretty good for a black and white blog that doesn’t advertise and for which I’ve done no promotion.
In the end, traffic doesn’t mean a whole lot without what we call in my field “key performance indicators.” The key performance indicators of this website are the number of people who find us online and come forward with additional information, evidence, or horror stories about Andy Esquivel and his various scams and the number of months Andy spends in prison because of the evidence we uncover. By those measures, this tiny little corner of the Internet is doing pretty good.
How do you measure success?
Judge Connors and the prosecutors of the Davis County 2nd District Court have finally lost their patience with securities fraud defendant Andres “Andy” Esquivel. During the pre-trial hearing February 12th, the court issued a preemptive warrant for Andy Esquivel’s arrest should he fail to appear for the pre-trial conference scheduled for February 26th. It will no longer be acceptable for Allen Brady, Andy’s brainless side-kick from Draper, to appear on Andy’s behalf.
The court denied a request by outgoing defense counsel William Albright to set a pre-trial hearing a month out. The date was set for two weeks following last Tuesday’s meeting as a signal that this trial needs to move forward and further delays will not be tolerated.
The court granted William Albright’s request to be removed from the case because he has found the pre-trial activities of Andy Esquivel to be “repugnant”. Since Andy has not yet filled out the required “proof of destitution and poverty” paperwork allowing him to even use a public defender, nobody has yet been formally assigned to replace Albright. At this moment, Andy is officially without legal counsel for the third time in the history of this case. Once the destitution paperwork is filed, we’ll post it online for the rest of you to inspect.
What I find amusing is the fact that Andy has been proclaiming for three years now that his army of high-priced corporate lawyers have consistently advised him not to post anything else online until court – yet in the last three years Andy has posted hundreds of times and emailed those involved in the case ad-nauseam in spite of his claims that this or that will be “the last post until court.” This website is in fact kept alive by the fact that Andy doesn’t know when to shut up! The library of evidence which Andy has posted against himself is amazing, and it’s cost him two different attorney’s in the last nine months. Even now Andy is posting claims that he and his illiterate co-conspirators could have prevented sites like Twitter and Apple from begin hacked, in spite of the fact that he couldn’t even prevent a hacker from taking his amateurish e-cigarette website offline for over a year. (…so much for Digital Internet DNA)
Andy claims to have an army of witnesses willing to testify on his behalf at trial, but the fact is only one person visibly still supports Andy, and that’s Allen Brady (the man who helped Andy steal $50,000 from his own mother). Andy even claims that Rebecca Dunn is scheduled to testify in court and that he’s been in contact with her – a ridiculous assertion for reasons I’m not going to post on this website. We continue to receive emails from people willing to testify against Andy and we forward them all to prosecutor in the case. The bottom line is, Andy is pretty much alone and the doors are closing in. It’s time to either plead guilty or start packing for an extended stay in Davis County. Personally I think Andy’s going to plead guilty and rip somebody else off to pay the settlement required by any plea deal to Ryion , Kyle and Chris.
…we will see.
Here’s Andy Esquivel’s latest statement about trial:
I am Back! Hello everyone my name is Andy Esquivel I would like to thank Team Wiser Allen, John, Shar, Leonard etc. as you may have heard by now trial was cancelled again. I will get my day in court no matter how long it takes. I will not take misdemeanors they are trying to force to save themselves from a lawsuit all because Ryion & Daryl lied to the Utah S.E.C!
You hear that Daryl Acumen I will never quit until I see you and your mother Rebecca Dunn take the stand at trial!!!
Earth to Andy – your trial has been postponed, not cancelled. Don’t worry, you’ll get your day in court soon enough. Hey, since you’re so ‘eager’ for your trial to start, why don’t you save the court some time and represent yourself instead of waiting for the new public defender to come up to speed on your case (that would be a load of laughs). Better yet, just plead GUILTY and get it all over with!
As for Rebecca Dunn taking the stand at trial – don’t hold your breath. Personally I would give my left arm to be able to testify against you at trial, but since I’m only peripherally connected to this case, that’s not likely. Maybe you should ask your new attorney to call me to testify though and see how that goes over. “Hey Julie, I want Daryl Acumen to take the stand at my trial…no I’m not crazy…yes I realize he’ll only convince the Jury to put me away for a quarter of a century, but…no I haven’t lost my mind, why do you…but I don’t care if I go to jail, I just want to look good in front of my friends…OF COURSE I HAVE FRIENDS!!!”
Andy is unbelievable, but a load of laughs. Keep posting buddy. Maybe you’ll land a guest spot on Dr. Phil. I hear they have a special program coming up devoted to pathological lying sociopaths with delusions of grandeur.
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.
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.
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!!!
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
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.
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.
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.
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…
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
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…
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
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…
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].
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.
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.
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.
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.
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 <firstname.lastname@example.org>
Date: XXXXXXXXXXXXXXXXXXXXXXX at 11:36 PM
Subject: RE: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX!
To: email@example.com, firstname.lastname@example.org, email@example.com
Cc: firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.comPrivate 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.
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.
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!
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
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.
From: Ron Kelsay <firstname.lastname@example.org>
To: Karma Cause <email@example.com>
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.
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.
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.
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.