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Andy Esquivel Pleads “No Contest” to Harassment Charges

Posted on February 17, 2012 in Andy's Threats Ron Kelsay Trial Updates

Andy Esquivel Pleads “No Contest” to Harassment Charges

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!

Andy Esquivel says Xtagged wasn’t a scam after all

Posted on February 9, 2012 in Andy's Videos Trial Updates Xtagged

I know this will come as a SHOCK to some of you reading this blog, but Andy Esquivel recently posted a new YouTube video in which he claims that (get this) Xtagged wasn’t a scam after all!

Andy warned everybody!

Wow, what a relief!  I had no idea.  Damn, well I guess Andy can fire Michael Holje now and we can all go home…NOT!!!

As ‘proof’ for his assertion that Xtagged wasn’t a scam, Andy points to a password protected  link on his Wiser Technology tombstone website which he says contains documents which PROVE that even though Xtagged never legally existed, it somehow legally existed – did you follow that?  No?  Ok, let’s try again…

In order for a company to legally exist, it must be registered with the Secretary of State of the state in which is chooses to do business.  Oh, and it should probably have a business license to go with that registration.  Xtagged, Inc. never had a business license, and was never registered in either Colorado or Utah.  That means Xtagged Inc. never existed except in the imagination of Andy Esquivel.

Just to be clear for those of you who are still confused: just because Andy Esquivel pretends that a company exists, that doesn’t make it so.  😉

So, Andy has these fraudulent documents which he claims prove the impossible, but they’re hidden behind a password protected link that he’s only given to the multitudes of journalists, who couldn’t care less about him because none of them ever show up to any of his court hearings, and he expects those of us who aren’t out of our minds to believe him?  …uh-huh, that’s what I said.

Anyway, in Andy’s video, he goes on and on about how he warned everybody that Xtagged wasn’t fake (as if that somehow makes the company real) and points to an email he sent in which he tells everybody this months ago.  He even claims to have told the SEC (by which he means the Utah department of Securities).  Gee, I wonder why the Davis County Prosecutor decided to go ahead with the case when Andy had sent out this email saying he wasn’t a scam after all?  The Utah Department of Securities investigator must feel like a fool for missing Andy’s email telling him that the whole investigation was a waste of time.  All Andy has to do is show that warning email to the Judge on the 21st and I’m sure it’ll all be over.  Good luck with that Andy!

Esquivel even digs out an old email my mother wrote when she was still completely delusional and hanging on Andy’s every word.  My mother later apologized for the email and admitted that everything in it was a lie, but that doesn’t deter Andy.  Beckie even tried to make up for her part in Andy’s various scams by sending hundreds of pages of incriminating documents to be used against Andy in his pending fraud case (see Beckie Speaks for a sample), but again Andy is undeterred.

All-in-all it’s a pretty sad video.  Andy is obviously out of steam and grabbing at straws to try to save his pride.  I guess facing felony fraud charges and an eminent indictment can really weigh on a guys psyche.  No matter, it’ll all be over soon.  All Andy has to do is plead ‘guilty’ and he might be able to avoid spending the next several years in a Utah state prison.

…or he can just go into hiding for ten years like he did when he was charged with 2nd degree felony burglary of a dwelling in Weber county back in 1988 and just hope the whole thing blows over before he’s 50.

 

Logan Laws is BACK!!!

Posted on February 9, 2012 in Xtagged

Logan Laws has just returned form his mission!  He arrives just in time to testify against Andy Esquivel –  if Andy’s lawyer isn’t able to negotiate a plea deal before the trial starts.

Logan bought .5% of the fictional company “Xtagged, Inc.” from Andy Esquivel for $2500 – which he borrowed from Ryion Butcher.  Logan’s father was able to pressure Andy into returning the money by threatening to turn him over to the authorities press charges for fraud (ironic when you think about it).  Andy was only able to come up with the cash by conning it out of a gullible dork named Shar Jenkins in Denver.  Logan then returned the money to Ryion.

All of this is of course documented and the prosecutor has all the details.  Logan has stated that he intends to tell his side of the story at trial.  It should be interesting.  How low can a con artist go, scamming money from a 19 year old kid?  Andy deserves what’s coming to him.

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Fraud case preliminary hearing reset to 3/21

Posted on February 8, 2012 in Trial Updates Xtagged

Andy Esquivel’s fraud case preliminary hearing reset to 3/21

Andy EsquivelAndy’s attorney notified the court this week that he needed more time.  A new preliminary hearing data has therefore been scheduled for March 21st @ 2:30pm.  Here’s the latest case update [PDF].  Odds are Michael Holje will spend the next month negotiating such a plea bargain on Andy’s behalf and advising his client to take whatever he can get.

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Gene Allen & Georgia Brady fraud documents

Posted on February 6, 2012 in Trial Updates Xtagged

Andy EsquivelI’ve uploaded a scanned copy of the fraudulent documents Andy Esquivel used to scam Georgia Brady out of $50,000.  The docs were drawn up by Georgia’s attorney and her son Gene Allen Brady helped facilitate the scam.  The documents are notarized and would be fine except for one tiny detail which Georgia’s lazy attorney never bothered to check: the company listed on the documents “Xtagged, Inc.” never legally existed.  These documents are evidence of fraud, however Georgia’s brainless son convinced her not to press charges against Andy so that he could continue to be Andy’s friend.

Here’s a link to the document [PDF].

…and here’s Georgia Brady’s response to the way Andy jerking her around after stealing her money:

From: Georgia Brady georgiabrady@yahoo.com
Date: Fri, 9 Apr 2010 11:38:20 -0700 (PDT)
To: stelex247@yahoo.cominfo@xtagged.comjwootton@centralutahlaw.com
Subject: 10% ownership of Xtagged

April 9, 2010

To Whom It May Concern:

Last week, Andy set up a meeting with me, our lawyer and Steven K. McCormic for yesterday in Sandy, Utah at 11:00 a.m. As usual, he didn’t keep his commitment and is still jerking us around.

What is it going to take to get all of you to understand that Allen and I have the right as part owners of Xtagged to know who all the new owners are, the name and contact information of your lawyer so we can send the proper paper work to him that will show we legally own part of Xtagged? I know that Andy is blocking our every efforts so you don’t find out what a
liar he is. Like it or not, Andy has committed fraud and if you continue to protect him, you will be part of his fraud game and guilty by association according to the law.

Now, we can get this information peacefully and professionally or we can get it the hard way. Your choice. If I don’t get this information for my lawyer within the next 24 hours, Andy and Xtagged plus everyone associated with him will be turned over to the Federal Division of Securities for fraudulent activities Monday morning.  Andy has done fraudulent business in 5 or 6 states, making it a Federal offense. Not only will they get our information for us but Andy will end up in prison again.

So, do we do this peacefully and professionally or the hard way? Your choice – 24 Hours!

Please email the information to Georgia. Thank you.

Georgia Brady
georgiabrady@yahoo.com

 

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Beckie Speaks

Posted on February 6, 2012 in Andy Esquivel's Scams Uncategorized Xtagged

We just added a “Beckie Speaks” tab to the blog where I intent to post as many of Rebecca Dunn’s anti-Xtagged documents as possible.  Beckie was formerly the pretended CEO of Andy’s various scams.  She eventually came to her senses and realized that Andy is a con man and Xtagged / Wiser are scams.  She’s still a little delusional, but her documents add a lot of color to Andy’s operations and state of mind.

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Xtagged in the Beginning

Posted on January 27, 2012 in Xtagged

I first became aware of Xtagged through a club owner in Salt Lake City.  I owned all the nightlife websites in the state at the time and Andy had approached this club owner about his social media website hoping to persuade him to give Andy special access which he could use to look like a big-shot and pick up girls.  Andy tried this ploy in several nightclubs in Utah including Skybar, Allure, and eventually Playground, which (according to Andy) went so far as to give him a percentage of the club in exchange for ownership of the club in exchange for licensing rights to the Xtagged.com website.  The club owner in Salt Lake suggested that Andy meet with me, since I was already dominant in the nightlife social media space and a friend of his, and called to recommend I speak to Andy.

When I met Andy, he gave me an elaborate pitch about a dating website that used license plates to authenticate users and blue-tooth technology.  He told me that MySpace was offering to buy him out for $100 million dollars and that everything was patented.   The idea didn’t sound very marketable to me (the MySpace buyout claim was downright ridiculous) and I doubted it would ever go anywhere, but I continued to listen to Andy because he had been recommended by a friend and because his claims about patents seemed plausible and if so would have indicated that there was in fact some legitimate intellectual property behind what he was saying.  I wouldn’t find out until much later that his patent claims were absolute garbage.

I told Andy that I would post his Xtagged logo on my website’s homepage (it actually rotated with other partner logos) and that I’d introduce him to some technology investors in Park City who could flush out whether he had anything worth funding.  My wife objected to me working with Andy because she thought he was full of crap, but I said that there was no risk since it wasn’t really costing me anything except my time and I owed it to my friend to at least hear him out.

I later introduced Andy to my mother, who was out of work and living with me at the time, to see if she would be able to pick up some business consulting hours for helping him get his story straight.  Andy claimed to have funding and I figured if he was for real, then he and my mother could mutually benefit one another.

I eventually took Andy to meet with some investor friends in Park City, but the meeting came to nothing.  They later told me that they didn’t believe Andy’s idea was worth their time and they doubted he had any really proprietary technology under the hood.  My wife and I drove Andy and his companion Allen Brady home after the meeting and spend three hours with them stuck in a snowstorm on the freeway listening to Andy rant about his technology and ideas.  It was then that my wife realized that not only was Andy Esquivel completely full of crap, but he was probably insane as well.  I was too busy fighting traffic to notice and my wife would spend the next several months trying to convince me to stay as far away from Andy as possible.

Andy eventually convinced a club owner to let him “hang out” with his friends and promote his “Xtagged” brand in their vanue.  The club was Playground in Park City and Andy invited me up to take pictures of his events and to meet the club’s owners.  The events was a total bust with only Andy’s invited friends and Allen Brady attending, but I used the time to introduce myself to the owners in the hopes that I could leverage the relationship later during Sundance as a way to expand my website’s reach into Park City.  It was during that event that I started gettign red flags which suggested Andy was not at all what he claimed to be.

First, Andy pulled me aside and complained that I’d talked independently to the owners about working with my website to promote their events.  Andy claimed that he’d “already hooked [me] up with them bro” and that I’d “embarrassed him” by going over his head.  I pretty much blew Andy off and told him that under no circumstances would I allow him to speak for my website or to be an intermediary between me and nightclubs in the area.  My website sold itself and the last thing I needed was some small-time upstart interfering with my operations.

Later that same night Allen Brady gave me my second red flag when he approached me at the clubs back bar and confessed that he was beginning to think that Andy was a scam and completely full of crap.  I didn’t share with him at the time that I had come to the same conclusion.  Instead I reassured him that many early stage ventures seem shifty at first and that he should keep a healthy skepticism and keep his eyes open, but that I was sure Andy was probably an alright guy.  In short, I lied!

Andy and I continued to speak occasionally over the phone for several weeks after the failed Playground event.  I managed to talk to his patent attorney at one point about some unrelated business, but Andy told me not to call him again because he was trying to steal the company from him (a recurring theme over the years).  My mother continued to meet with Andy and even had my uncle talk to him about his ventures.  Apparently Andy gave him a sob story about his lawyers trying to steal his business from him and my uncle bought into it, offering to help.  I’m frankly not completely convinced that my uncle isn’t a con-artist as well.

I continued to tolerate Andy even though I was increasingly convinced that he was full of crap because I believed that with some professional help he might be able to turn his wild ideas into a viable concern.  I kept his logo on my website to add variety and my mother continued to work with him even though, except for a few dollars Andy asked me to give to her once at Playground, she wasn’t getting paid.  Eventually my mother moved away and I lost touch with Andy.  Looking back, it was a huge mistake to deal with Andy for as long as I did.  The red flags were all over the place, but like many I was too busy to pay them much attention.  Most of the time I would humor Andy and listen to his rants simply to avoid an uncomfortable conversation in which I confessed I didn’t believe a word he was telling me anymore.  I was probably numb to Andy’s garbage because I dealt with so many promoters who were just like him on a weekly basis.

In the end, the only person I have to blame for my involvement with this dirt-bag is myself.  My wife continues to tell me ‘I told you so!’

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What is Xtagged.com?

Posted on January 27, 2012 in Xtagged

Xtagged.com was a social media dating website assembled by Andy Esquivel that used license plate numbers as the primary identifier. I claimed to make the Internet safer by employing advanced technologies like facial recognition and API links to law enforcement databases (like child molester registries) and the DMV to authenticate user identities.

Unfortunately the entire system turned out to be an elaborate scam and Andy Esquivel was subsequently charged with three felony counts of securities fraud for selling stock in the holding company (Xtagged LLC or Xtagged Inc depending on the day of the week) which never legally existed.

The case is now before a district court judge in Davis County and Andy faces up to 25 years in prison if convicted – 15 for one 2nd degree felony count and 5 years for each 3rd degree felony count of securities fraud.  The Utah case number is 111701135.

Xtagged.com no longer exists and is being redirected to Bump.com, a legitimate website based on the same concept. Andy current;y contends that Bump.com stole his idea and claims to be suing them over it, though no evidence of such legal actions exists and there would be no basis for one if it did.

 

 

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Andy writes email as Ron Kelsay

Posted on January 25, 2012 in Ron Kelsay

Here Andy’s latest blog.  It’s supposed to be an email from Ron Kelsay.  The grammar and spelling are better than normal, but still far below that of an educated adult with English as his first language so I’m assuming this was written by Andy pretending to be Ron.  Notice the repeated lack of periods and the lack of coherent idea-flow?  Also notice how Andy claims that the background information we found (very easily I might add) on Ron Kelsay was made up.  Ron knows his criminal record and even he isn’t stupid enough to try to claim it’s not all true.

It worked Daryl & Ryion manipulate Ron’s past…

From: Ron Kelsay <ronkelsay@yahoo.com>
To: Karma Cause <karmacause@ymail.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.
Andy’s been quiet for a while and he’s trying to pretend that this isn’t him, which means his attorney told him to shut up and lay low until he can work out a plea deal in Davis County to keep him out of jail.  Whatever prompted Andy to write this, I’m glad he finally did it.  It was getting boring around here with him scared back under a rock in Colorado.  More power to him for having the stones to keep talking mess with criminal charges hanging over his head.
Note: Andy claims here that he intentionally selected Ron Kelsay as his cameraman because of his criminal record.  Also note that Sundance is going on right now and Ron’s HUGE documentary obviously didn’t make the cut.  …more lies exposed.

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Harassment Trial update

Posted on January 19, 2012 in Trial Updates

Andy Esquivel just posted the following on his Wiser Scam website:

January 17, 2011 American Fork prosecutor offers Andy plea bargain (NO jail and one year probation). Andy said no thank you. WHY? because Andy is innocent! 

Hmmm…so it looks like Andy is holding out for a better plea deal than “NO jail and one year probation.”  What’s he expecting, no jail and six months probation?  Maybe he really does want this case to go to trial.

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Andy’s bogus trial updates…

Posted on January 17, 2012 in Andy's Threats Trial Updates

Andy Esquivel is still trying to convince his friends that he’s in complete control of his legal situation and that things aren’t as bad as they appear.  Here’s the lates from the Wiser Technology website:

Court Update; January 17,2012 in Davis County court, we all finally get to tell our side as owners of Xtagged. John Steer, Jake House, Allen Brady, Shar Jenkins, Steve klemark & more. Followed by American Fork where we all will testify against Daryl Acumen.
  
After we all prove that securities were never sold as Ryion & Daryl stated “hundreds were sold”.
We will continue with our lawsuit for Xtagged.
F.Y.I Wiser Technology has received a great offer from a Nevada company that we are looking into 01/18/2012.

…so where do we begin?  First of all, the hearings held today in Davis County and American Fork Utah were preliminary hearings, not trials.  There was no jury and nobody was the least bit interested in anything Andy Esquivel had to say.  In short nobody “testified” about anything…period!  In both cases, Andy’s attorney simply informed the court that he needed more time to convince his client to plead ‘guilty’ or to formulate some kind of defense.  The idea that Andy or his gullible friends would get to ‘tell [their] sides of the story’ today or ‘testify against’ me is completely delusional and illustrates how mentally disturbed Andy Esquivel is.

Second, Andy is an IDIOT if he thinks he’s going to be able to convince a judge that he never sold securities, especially when the state has copies of the checks written to him by investors  as well as signed documents claiming to do precisely that.  I don’t know what Andy means by “hundreds were sold”.  Hundreds of what?  Does he mean shares?  If so, then his own documents conform that Andy sold tens of thousands of shares, not hundreds.

As for a lawsuit for Xtagged, all I have to say is…next?  I mean seriously, we’ve been hearing the same hollow threats about the same fictitious companies for years.  Who at this point is still listening?

Finally Andy now claims that some company from Nevada, blah, blah, blah…  We’ve heard that before too.  it used to be entertaining, but now it’s just…whatever.  The first time I ever spoke to Steve Klemark on the phone he said Andy had some BS story about investors in Nevada.  Every time Andy wants to create the impression that there’s money right around the corner he brings up some company in Nevada.  It’s almost a running joke, like saying ‘I’ve got some beach-front property in Arizona to sell.

I think it’s funny that Andy still has the stones to try so hard to spin his dilemma online.  Everybody knows he’s guilty of fraud and within a few months he’s going to be pleading guilty to all charges.  What does he think he’s gong to gain by continuing to lie?

for REAL updates, stay tuned to this website and check out “Trial Updates” section monthly.  As new information comes in that is public record, we will post it here.

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Case#101101231 January 17th update (harassment)

Posted on January 17, 2012 in Trial Updates

Today Andy showed up in American Fork with his attorney and was granted another continuance.  The court ruled that he doesn’t have to show up for the next hearing and that a plea statement can be filed via affidavit.  For more details, click here.

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Case#111701135 January 17th update (fraud)

Posted on January 17, 2012 in Trial Updates

Andy appeared in court today with his attorney and asked for a remand of his waived preliminary hearing from last year.  The Judge set the date for a remanded preliminary hearing on February 17th 2012.  For details, click here.

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Andy Esquivel Witness Tampering Video

Posted on January 4, 2012 in Andy's Videos

Andy Esquivel's witness tampering video

Andy Esquivel engages in Witness Tampering on video

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.

 

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Andy Esquivel’s Samsung Instinct video

Posted on January 3, 2012 in Andy's Videos

Xtagged Samsung Instinct

Xtagged Samsung Instinct by Andy Esquivel

This is one of Andy Esquivel’s first slight-of-hand fake product videos and it’s hilarious!

Andy begins by showing you a Samsung Instinct box then flips it over to reveal (dramatic pause0 a silver Xtagged sticker!  Having a sticker on a box obviously means it’s a bundled product, right?

he goes on to explain that Xtagged is now shipping with the Samsung Instinct phone from Sprint and begins showing you how it works.

With a magical mix of photos stored in his phone and a savvy flip over to the built in web browser, Andy tries to convince the viewer that all he has to do it point the phone at someone’s Xtagged badge and the phone’s “secret formula freezes the shot and  automatically takes you to” the persons Xtagged profile.

Only a complete idiot (like Allen Brady) would fall for this pathetically transparent trick, but Andy seems excited about it nonetheless.  It takes either someone who is completely insane or really high to believe that anyone out there would fall for this sort of thing, but Andy does.  He even goes on to explain that ‘recruiters’ can use the technology to stop ‘pedophiles’ from posing as something.  i dind’t quite understand that part of the pitch, but Andy is excited about it anyway.

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Ron Kelsay Negotiates a Settlement?

Posted on January 3, 2012 in Andy's Videos

Ron Kelsay Settles with Ryion

Ron Kelsay Settles with Ryion

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.

 

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Andy Esquivel’s Bluetooth Profiler Thumb Scan Video

Posted on December 21, 2011 in Andy's Videos

Andy Esquivel's Thumb Scan

This Andy’s Thumb Scan video.  In this ridiculous display of Andy’s delusional mental state, he pretends to have invented an app called “Bluetooth-Profiler” that scans your fingerprint, and can start your car after verifying your identity.  The app even claims (look closely at the text on the phone) to “stop theft, sex offenders, and aid the FBI and CIA” at doing what it is they do.

This video is ridiculous for several reasons:

First of all, Andy is using an app that already exists called the ‘CSI App’ that doesn’t ACTUALLY read your fingerprint, but can be downloaded form the Apple App Store for a few bucks.  Ryion downloaded his own copy and laughed his butt off.

Second, Andy is clearly using a remote starter hidden in his pocket (or being used by a friend standing nearby) to start the car.  This is an obvious trick, especially to someone who has a remote starter…like me.  We actually have images of the remote starter Andy used.  My attorney downloaded it from Andy’s Xtagged website.

Finally, even if this app were for real, it wouldn’t make any sense!  A remote starter app that reads your fingerprints (this generation iPhone isn’t sensitive enough to read a fingerprint) is one thing, but how exactly does a remote starter stop sex offenders?  How would a remote starter, even one with fingerprint identification, aid the CIA?  To suggest the FBI is already a stretch, but to say the CIA means that Andy has completely lost his marbles!

…and what does all this have to do with blue-tooth?

You can watch Andy try this trick again in the daylight in this video.

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Andy Esquivel’s Mariah Carey Video

Posted on December 21, 2011 in Andy's Videos

Andy Esquive;'s Mariah Carey video

This is Andy Esquivel’s famous Mariah Carey video.  In this video Andy is drunk and jumping around his mother’s living room pretending to wave a can of the new energy drink in his hands.  He’s standing in front of the projected image of a Youtube video of Mariah Carey speaking at an awards show in Palm Springs.  The video has credits on it identifying it’s source and Andy has taken aluminum foil to the wall where the images is projected to obscure those credits.

In the video, Andy claims that he’s in the home of one of his rich and “spoiled” investors watching this video on a “really big screen.”  Of course this is one of Andy’s many fantasies.  You can see the shadow of his mother’s ceiling fan on the image projected on the wall and it’s obvious he’s using a laptop projector.  We also know this is his mother’s house because he walks you through it in this video which gives a clearer image of the living room and the projector used.  A video walk-through of the upstairs can be found here.  In the walk-through videos, Andy’s daughter’s toy car can clearly be seen in a corner, Andy’s car is in the parking lot, you get a view of the room where the towing video was shot so once again it’s clear this place is not owned by a rich investor.

When Andy first sent me this ridiculous video, I was so upset that I told him never to send garbage like this again:

Dude, that’s the stupidest thing I’ve ever seen in my life! Please don’t waste my time with crap like that anymore. I’m very busy these days.

Steve Klemark supposedly responded with the following:

 You Have Been removed from Xtagged mail list! Dude my name is Steve as it read at the bottom of your email. And know that i see your from UTAH, I need to no longer wounder why Andy left There! But i will wounder why. Andy wants to buy party Utah, now That i Know who you are, and will see about that, I can  build him same site For pennies on the dollar or get one of the many temples out there. and name it Utahwhatever, See its not nice to be a You, Dude This is for charity, you know the thing that partyutah.com could have built from being that all your sites about is bars clubs you know Napkin nights sort of thing. you could have applied free taxi service to your site, where people could have logged on to your site to get free taxi service! OK Now i just figured out why Andy wanted your site. And proper men do not sent emails with swear words, we are a family based company because of the safety aspect   of site And Buzz/wiser the commercial that would have aired on your site teaches kids responsibility unlike 1995 Budweiser’s that taught kids to remember Budweiser when they turn 21. so just so you know we have been getting positive feedback from this, you are the only negative feedback THX.

P.S ASS-WISER Will be available soon near YOU! Its guaranteed to make you think of other people than yourself!
Good Day Sir Ass-A-Lot!
Steve K co-owner of Xtagged and hopefully soon Buzz/Wiser!
No need to email me back until you have taken your dose of ASS-WISER, Wow i am still in shock of who you are and that this is forrrrr! charity period. God Bless

After I received this ranting, crazy email from Andy pretending to be Steve Klemark, I knew I was dealing with a nut!  It was at this time that I began researching Andy to see if he was for real and found Ryion Butcher’s blog.  A full breakdown of this email exchange can be found in this document compiled by my mother, who was pretending to be the Xtagged CEO at the time.

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Andy Esquivel’s Buzz/Wiser Frog Video

Posted on December 19, 2011 in Andy's Videos

Andy Esquivel as Wiser Frog

Here’s another stupid Andy video.  Here Andy once again claims to have sold Xtagged, the fake company he used to scan several Utah investors out of tens of thousands of dollars, but he does so in the shape of a frog while announcing the launch of a fake energy drink.  This is Andy’s second most hilarious video ever (the Mariah Carey video takes the award there) but it’s one of our lost favorites.

Enjoy this gem while we prepare other classics for upload!

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Andy Esquivel Promises to Fix Healthcare!

Posted on December 19, 2011 in Andy's Videos

Andy Esquivel Xtagged Healthcare Video

Well, we’ve finally located Andy’s dumbest and most revealign video.  I call this the “Healthcare Video” because about 5 minutes into it, Andy claims that he’s using 51% of the profits from the scam to fix healthcare.  This is about the time when Congress was debating Obama’s healthcare reform bill, so it goes to show Andy’s lack of creativity.

This video is the most telling of all Andy recordings because it was made before he realized he’d be open to the intense scrutiny of this blog or it’s predecessor massage board thread.  In it he shows off his full lunatic glory by bragging with wild abandon about the millions of dollars he could be making without any regard for physical reality.  Over time Andy’s videos became slightly (but not much) more restrained  and he took a little (but not much) more care to make claims that weren’t as easy to invalidate.

To add to the fun of this video, I’ve decided to break the lies down by video timestamp.  This will allow the viewer to jump to the funniest parts of the production without having to wait through other less interesting claims along the way.

  • :07 Andy claims that he USED to be with Xtagged, implying that he has since moved on.
  • :14 Andy claims he’s suing Ryion for various reasons, which obviously never happened.
  • :18 Andy brags that XOutScams.com is down and says in this video he will reveal why.  He never does and XOutScams.com is now back online.
  • :35 Andy claims that Xtagged.com has been sold, a claim he later denies.
  • :46 Andy claims there were seven investors in Xtagged and they’re all getting paid back.  Obviously this never happened and three of the seven are now pressing criminal charges against Andy for fraud, not to mention civil charges.
  • :58 Andy admits that Ryion was an investor and that he invested $5k.  This contradicts Andy’s current fraud defense in which he claims that Ryion wasn’t an investor and that it’s silly to refer to him as one because he helped promote the business, making him a partner int he scam.  He also admits for court that he took $5k of Ryion’s money and never gave it back.
  • 1:17 Ryion shows off Logan Laws’ check for $2,500.  This is interesting because Logan will be back form his mission shortly and he intends to testify against Andy in court.
  • 2:14 Andy brags that Ryion and Logan bought 1.5% of Xtagged, a company that didn’t legally exist at the time.  This further incriminates Andy for the court.
  • 2:32 Andy claims that he lost $1.7 million dollars in potential investments because of Ryion’s blog.
  • 2:57 Andy claims that Logan’s documents are fake…even though they’re signed by Andy and notarized.
  • 3:24 Andy claims that Ryion borrowed his investment from his mother, a charge that is patently false and kind of a dumb thing to assert considering that’s where Allen Brady got his investment.
  • 3:48 Andy claims he’s talked to his lawyers and the truth will come out in court.  Of course we now know that at the time Andy didn’t have any lawyers and of course the only court dates Andy has had in the three years since this video was made have been to answer for his various criminal charges including fraud.
  • 3:55 Andy claims that all the documents on Ryion’s website (signed by him and notarized) are fakes.
  • 4:04 Andy repeats his claim that Xtagged.com was sold and laments that it would have sold for a lot more if not for Ryion’s blog.
  • 4:18 Andy asserts that he will be pressin gcharges against Ryion, which of course has never happened.
  • 4:24 Andy claims that Ryion violated an NDA…unfortunately for Andy, Ryion never signed an NDA.
  • 4:50 Andy again claims that he wants to claim criminal charges, which another empty threat.
  • 5:00 Here’s the big one; Andy claims to have sold Xtagged for $2.5 MILLION DOLLARS!!!  he says he could have sold the puny little construction paper website for $4.7 milion, he claims, if it weren’t for Ryion’s blogs.  He then claims that he turned down an offer for $20 million because the buyers wouldn’t let him donate 50% to charity…which makes no sense whatsoever.
  • 5:18 Andy claims that Steve Klemark is one of the new owners.  We later found out that Steve gave Andy $5k and later borrowed most of it back.  To assert that Steve had anywhere near $2.5 million dollars at this time is laughable, especially since he was unemployed.
  • 5:20 Andy claims that 51% of the proceeds from Xtagged will go to FIX HEALTHCARE!!!  He goes on to assert that everybody in America will have healthcare because of Xtagged.
  • 6:24 Andy claims that Xtagged.com prevents perverts from stalking children online, which is funny because all of Andy’s five children were conceived with under-aged girls who were half his age (one as young as 15).
  • 6:48 again, Andy claims Xtagged proceeds will go for providing free healthcare.
  • 6:59 Andy brags about using Xtagged to buy gift cards for homeless people (an idea he stols from KarmaCurrency.co.au, again illustrating his lack of imagination).
  • 7:20 Andy again threatens to press charges against Ryion…ironic since Ryion is the one who pressed the criminal charges against Andy for which he is now on trial.
  • 7:29 Andy claims that 25% of the proceeds from the Xtagged sale will go to private investors.
  • 7:45 Andy claims that 24% of th eXtagged sale proceeds will go to 12 men and 12 women, all of whom have won Pulitzer “Surprises.”
  • 8:00 Andy claims that 24% will go to private investors.
  • 8:28 Andy announces the launch of “Bizz/Wiser” as a charity with 50% of the proceeds going to MADD.  Of course MADD famously threatened to sue Andy for this claim and made it clear they would have nothing to do with him, his products, or any of his scams.
  • 9:01 Andy claims that “club after club” had been approaching him about Buss/Wiser, demonstrating his obsession with nightclubs and revealing his real motivation for his newest scam.
  • 9:08 Andy goes on and on about anti-hangover pills, an energy drink that forces you to drink water, animated frogs that teach kids not to drink and drive, and other ridiculous hallucinations he was having at the time.
  • 9:26 Andy brags about the deal in which he sold Xtagged.
  • 9:47 again complains about the non-existent NDA with Ryion.
  • 9:50 Andy talks about the aborted $20 million dollar deal to buy Xtagged and tries to explain why he turned it down.  He then implores Kyle and Ladd to post against Ryion.  Both have since signaled that they will testify against Andy at his securities fraud trial.
  • 10:15 Andy claims that he’s taking $100k of the $2.5 million dollars from the sale of Xtagged and that $2.4 million will go “back into the budget,” which of course contradicts his earlier math in which he claims that 24% is going to Pulitzer “Surprise” winners, 25% to private investors, and 51% to fix healthcare.
  • Andy ends this video with the ironic quote “So who’s the scam artist now, Ryion?”

Since he’s facing three felony counts of securities fraud, I think the answer is clear…”You are, Andy!”

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Andy’s letters to the court…

Posted on December 7, 2011 in Trial Updates

Over the course of the last several months, Andy Esquivel has written the Utah courts several times to ask for more time to find an attorney.  Each time Andy sends a letter to the court, it becomes a matter of public record (a fact which Andy is completely ignorant of).  Because these letters are a matter of public record, anyone with a good attorney (or access to a public library and a basic knowledge of what to look for) can gain access to copies of those letters.  Below you will find links to the letters Andy has sent to the court so far, including one in which Andy openly wonders how in the world we are able to gain access to these letters in the first place.

Extension letter #1

Andy Esquivel asks for continuance of court date on November 14th and complains that I appeared in court.

Letter complaining that these letters are a matter of public record [PDF] (case#101101231)

Letter asking for more time and claiming that Ron Yengich is his attorney [PDF] (case#111701135)

 

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December 7th Hearing update (case#101101231)

Posted on December 7, 2011 in Trial Updates

4TH DISTRICT CT – AF
UTAH COUNTY, STATE OF UTAH
__________________________________________________________________

CEDAR HILLS CITY,               :  MINUTES
Plaintiff,          :  CONTINUANCE
:  NOTICE
:
vs.                             :  Case No: 101101231 MO
ANDRES ESQUIVEL,                :  Judge:   THOMAS LOW
Defendant.          :  Date:    December 7, 2011

__________________________________________________________________
PRESENT
Clerk:    daynat
Prosecutor: MERRILL, TIMOTHY G
Defendant
Defendant’s Attorney(s): MICHAEL T HOLJE

DEFENDANT INFORMATION
Date of birth: September 8, 1970
Audio
Tape Number:     2   Tape Count: 9.46

CHARGES
1. ELECTRONIC COMMUNICATION HARASSMENT – Class B Misdemeanor
Plea: Not Guilty

CONTINUANCE

Whose Motion:
The Defendant’s counsel Michael Holje.

Reason for continuance:
Counsel’s request.
The motion is granted.

PRETRIAL CONFERENCE is scheduled.
Date: 01/17/2012
Time: 02:30 p.m.
Location: Courtrm 1, 3rd Floor
Fourth District Court
75 East 80 North
American Fork, UT  84003-0986
Before Judge: CHRISTINE JOHNSON

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Legal Analysis by Adam Platt of Halifax Legal, LLC

Posted on December 6, 2011 in Andy's Threats

(My attorney’s official response to Andy Esquivel’s repeated threat to “sue”)

September 10, 2010
by e-mail
Andres Esquivel
utxpatrol@ymail.com

Dear Mr. Esquivel,

This letter is in response to your incessant refrain that you will “see [my client] in federal court.”  The short response is – I very much doubt it.  Although the threat has long since been rendered hollow through its shear repetition (to say nothing of the lawsuits that you have several times claimed to have already filed), I am aware of no legitimate basis that would support your initiation of legal action against Mr. Acumen.  While I will not waste my client’s money outlining every reason that is so, I will endeavor to provide a rough overview.

While I cannot know the precise claims you would assert against my client, I will assume them to be substantially similar to those included in the complaint that was the focus of the YouTube video that you posted on Friday, July 23, 2010 (link), which complaint you said would be filed the following Monday – July 26, 2010.[1]

Request for Injunctive Relief

Your complaint begins with a request that the Court issue a “preliminary and permanent injunction enjoining” Mr. Acumen from blogging, which speech you allege to be defamatory.  This relief is clearly barred by Article II, Section 10 of the Colorado Constitution, which provides, without qualification, that “every person shall be free to speak, write, or publish whatever he will on any subject, being responsible for all abuse of that liberty.”  The Colorado Supreme Court has repeatedly held that this provision provides broader protection for speech than does the First Amendment.  See, e.g., Bock v. Westminster Mall, 819 P.2d 55, 59-60 (Colo. 1991) (collecting cases).

Finally, the Colorado Court of Appeals has specifically held that defamatory speech (which Mr. Acumen’s speech is not), while actionable in damages, cannot be enjoined.  DeGroen v. Mark Toyota-Volvo, Inc., 811 P.2d 443 (Colo. App. 1991) (holding that injunctive relief is not available against speech activity, because the harm to reputation is insufficient to justify that remedy).

Alternative Tort Claims

Your remaining claims – Intentional Infliction of Emotional Distress, Intentional Interference with Business Relations, and Defamation – can all be effectively categorized as defamation, and defamation-like claims.  Considering claims such as yours, courts around the country have uniformly held that a plaintiff may not make an “end run” around the First Amendment by employing alternative tort labels to what is, in essence, a speech claim.[2]  As a result, a court would only consider your alternative tort claims if you are able to establish the elements of a defamation claim.

However, even if the defamation claim were actionable (which it is plainly not), and your other claims could possibly proceed, there are several reasons why your alternative speech claims warrant dismissal.  With regard to the “Outrageous Conduct” claim, it is worth noting that corporations – even were those listed as plaintiffs to actually exist – cannot suffer emotional distress.  Thus this claim cannot be brought on their behalf.  In any event, however, it is plain that Mr. Acumen’s actions – uncovering and publicizing your highly suspect business dealings is not the sort of conduct that would strike one as at all “outrageous,” especially given the precedent set by case law.

There are myriad problems with your claim for Intentional Interference with Contract as well.  I’ll spare you the complete scholarly dissertation for why that is so, but suffice it to say that such a claim would require that you identify real contracts that, but for  my client’s conduct, you would have been able to close.  What evidence you have proffered so far appears quite implausible – a characterization that, admittedly, may push too far the boundaries of acceptable euphemism.

Defamation

Part of what makes defamation law so interesting for practitioners is the stories that come out about the plaintiffs.  While defamation plaintiffs are often colorful characters, such as yourself, the real difference lies in the procedural aspects of the claim.  As you may be aware, a plaintiff’s personal history and character are usually inadmissible inasmuch as they are generally irrelevant to the questions at issue in the case.  But in a defamation claim, the question at issue is whether the plaintiff’s character has been damaged by the defendant.  In addition, the plaintiff has the burden of proving that he has a good character that has been damaged, and that the statements in question were false.

Thus, were you to actually file suit for defamation, your character would be very much at issue.  This would include your criminal history:  beginning with your initial federal felony and continuing through your 2004 Utah Federal Court conviction for being a felon in possession of a firearm and its accompanying sentence to six months in federal prison. See U.S. v. Andres Esquivel (D. Utah Case No. 2:03-CR-000293-001) (reflecting also that the defendant’s bond was revoked after court-ordered drug tests in May and August 2003 revealed the presence of methamphetamine).  Also at interest would be any outstanding warrants in Utah for unpaid child support (should any exist); your by-now-infamous run-in with law enforcement authorities in Bountiful (which I believe you said someone had filmed from the back-seat of your Lamborghini); as well as the three securities fraud cases pending against you in Utah.

I should note that you may perceive the previous paragraph as a threat on my client’s part.  It is not.  It is simply a statement of fact.  When a plaintiff claims to be a man of good character who has been maligned by a defendant, that defendant has the right – and his attorney has a corresponding duty – to zealously investigate whether the plaintiff’s claim of good character is well founded.

As a result, much of our inquiry would be naturally focused on the question of whether Xtagged.com really is a “scam,” a statement that you have taken particular issue with.  That would necessarily involve the investigation of the company’s finances – who invested what, and where the money went (all of which evidence would be directly relevant to the case and, should you refuse to disclose it, is almost certain to be ordered produced by the court).  Another area of interest would be Xtagged’s much advertised “facial recognition technology.”  I am very interested to see precisely how you managed to invent software that is capable of accurately recognizing facial features within low-resolution cell-phone pictures – a programming feat that continues to elude the rest of the country, despite the many of billions of dollars thus-far devoted to the problem.

Also relevant to Mr. Acumen’s defense against any claim premised upon his statement that your businesses are “scams” would be your easily discovered and stunningly-flagrant violations of federal intellectual property laws.  The most recent example, of course, is the revelation that your Buzz/Wiser drink (along with nearly all of its website advertising) appears to have been merely a direct copy of “Security Feel Better,” a European drink that has just begun to be sold in the United States, as well as its website.  You’ll likely recall the profanity-laced e-mail and cease and desist letter that you received from the manufacturer of that product.

Of course, that was not the first cease and desist letter that you received regarding your misuse of intellectual property and claim of affiliation with more famous brands.  You’ll also likely recall contact by representatives from New Belgium Brewing and Mothers Against Drunk Driving.

Finally, a defendant in a defamation case is naturally concerned about damages as well.  Mr. Acumen would thus subpoena evidence regarding how many subscribers Xtagged had prior to his blog postings, and how many after.  In addition, he would seek solid evidence of actual orders placed for your so-called “Buzz/Wiser” drink, and for “Wiser E-Cigarettes.”

Sadly, because your case would unlikely survive a motion to dismiss, it is likely that observers would be deprived of the benefit of the colorful stories that would surely come out of any defamation case that you filed.  To give just one example, your “YouTube Complaint” fails to specify the precise statements that you allege to be defamatory.  This is cause for dismissal for failure to state a claim.

Were you to attempt to provide adequate specificity, you would likely find that many of the allegedly defamatory statements that you attribute to Mr. Acumen were not actually made by Mr. Acumen.  While many of the posts on Mr. Acumen’s  UtahRaves.com message board were posted by Mr. Acumen (all of which are identified as having been written by “dacumen”), most were not.  Pursuant to Section 230 of the Communications Decency Act of 1996 (“Section 230”), Mr. Acumen cannot be held liable for the postings he did not author.  Looking at the remaining posts, I believe that you will find that they constitute either true statements of fact, or statements of rhetorical hyperbole that no one would understand to be literally true and that thus cannot be the basis of a defamation action.[3]  And, while you surely contest this, any other message board statements regarding you appear to clearly fall within the boundaries of substantial truth – if not literal truth.

Finally, you should be aware that should you file a lawsuit against Mr. Acumen, and the lawsuit is dismissed before the defendant is required to answer, Section 13-17-201 of the Colorado Revised Statutes provides that you “shall” be liable for Mr. Acumen’s reasonable attorney’s fees in defending the action.  Given your meager financial resources, your fellow plaintiffs would most likely be held responsible for this amount.

I remain happy to discuss these issues with your attorney.  However, since he cannot be bothered to respond to phone calls or e-mails, I can only assume that he does not, in fact, intend to represent you in this matter.  As a result, I would be willing to answer any specific questions that you may have via e-mail, so that we may have a record of the exchange.

Sincerely,

Adam M. Platt, Esq.



[1] I should note that this letter addresses only the substantive defects in the proposed causes of action themselves and ignores the myriad procedural defects and drafting errors.  For example, your complaint includes as plaintiffs “WISER E-CIGARETTE, a Colorado Corporation” and “XTAGGED, a Colorado Corporation.”  As you must be aware, the Colorado Secretary of State lists no such corporations in its list of businesses licensed to operate within the state.  While there is a “Wiser E-Cig, LLC” registered in the name of your mother, Jobita Berriel (registered April 23, 2010), there is not and has never been a business entity of any type registered under the name “Xtagged” within the state of Colorado (nor, I believe, in any other state).

[2] See, e.g., Caine v. Duke Communications Int’l, 24 Media L. Rptr. (BNA) 1187, 1190 (C.D. Cal. 1995) (“The employment of alternative tort labels cannot be used to evade constitutional limitations for defamation actions.”); Beverly Hills Foodland, Inc. v. United Food & Commercial Workers Union, 39 F.3d 191, 196 (8th Cir. 1994) (same, with respect to claim for tortious interference with business relations); Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 273-74 (7th Cir. 1983) (holding that a plaintiff may not make an “end run” around the rules for defamation claims by characterizing the claim as one for tortious interference); Foretich v. Advance Magazine Publishers, Inc., 765 F. Supp. 1099, 1104-06 (D.D.C. 1991) (holding that plaintiff may not, through “creative pleading,” invoke other, non-libel torts as a vehicle for “end-running other requirements of defamation law”); Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 342-43, 783 P.2d 781, 788-89 (Ariz. 1989) (applying First Amendment limitations to “any tort action relating to free speech”); Blatty v. New York Times, 42 Cal. 3d 1033, 1042-43, 728 P.2d 1177, 1182-83 (Cal. 1986); (same, with regard to tortious interference); Dulgarian v. Stone, 652 N.E.2d 603, 609 (Mass. 1995) (same, with regard to claim under state consumer protection statute); Hoppe v. Hearst Corp., 53 Wash. App. 668, 675-76, 770 P.2d 203, 207-08 (Wash. App. 1989) (same, with regard to claims for intentional and negligent infliction of emotional distress and false light invasion of privacy).

[3] It should also be noted that it appears that you have misunderstood an important point of law:  Neither Mr. Acumen, nor anyone else with a website has any obligation to permit a particular person to make postings on his or her website.  Moreover, Section 230 expressly provides that website hosts may edit or delete posts that they deem objectionable.  That said, while Mr. Acumen has blocked computers at your IP address from posting on the UtahRaves.com message board as a result of your repeated violation of its terms of use, others are permitted to post freely.

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