Case 3:21-cv-00237-DCG Document 67 Filed 03/25/22 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

EL PASO DIVISION 

Commodity Futures Trading Commission, 

Plaintiff, 

v. 

Abner Alejandro Tinoco, and Kikit & Mess 

Investments, LLC, 

Defendants. 

) 

) 

) 

) Case No. EP-21-CV-00237-

) DCG 

) 

) Hon. David C. Guaderrama 

) 

) 

) 

) 

) _________________ ) 

CONSENT ORDER OF PERMANENT INJUNCTION AND OTHER STATUTORY AND 

EQUITABLE RELIEF AGAINST DEFENDANT ABNER ALEJANDRO TINOCO and 

KIKIT & MESS INVESTMENTS, LLC 

I. INTRODUCTION 

On September 28, 2021, Plaintiff Commodity Futures Trading Commission (the 

"Commission" or "CFTC") filed a Complaint against Defendants Abner Alejandro Tinoco 

("Tinoco") and Kikit & Mess Investments, LLC ("Kikit") (collectively, "Defendants") seeking 

injunctive and other equitable relief, as well as the imposition of civil penalties, for violations of 

the Commodity Exchange Act ("Act"), 7 U.S.C. §§ 1-26, and the Commission's Regulations 

("Regulations") promulgated thereunder, 17 C.F.R. pts. 1-190 (2021 ). The Court entered an ex 

parte statutory restraining order against Defendants on October 13, 2021 ("SRO"). On October 

26, 2021, the Court entered a Consent Order of Preliminary Injunction against Defendant Tinoco 

("Tinoco PI Order") and entered a separate Consent Order for Preliminary Injunction against 

Defendant Kikit & Mess Investments, LLC ("Kikit Pl Order") or ("PI Orders"). The Pl Orders 

froze assets under Defendants' control, prohibited further violations of the Act and the 
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Regulations, ordered an accounting of assets, permitted CFTC access to all of Defendants' books 

and records, and prohibited the destruction of documents. 

II. CONSENTS AND AGREEMENTS 

To effect partial settlement of the matters alleged in the Complaint against Defendants 

Tinoco and Kikit without a trial on the merits or any further judicial proceedings, Defendants 

Tinoco and Kiki t: 

1. Consent to the entry of this Consent Order of Permanent Injunction and Other 

Relief Against Tinoco and Kikit ("Consent Order"); 

2. Affirm that they have read and agreed to this Consent Order voluntarily, and that 

no promise, other than as specifically contained herein, or threat, has been made by the 

Commission or any member, officer, agent or representative thereof, or by any other person, to 

induce consent to this Consent Order; 

3. Acknowledge service of the summons and Complaint; 

4. Admit the jurisdiction of this Court over them and the subject matter of this action 

pursuant to Section 6c of the Act, 7 U.S.C. § 13a-1; 

5. Admit the jurisdiction of the Commission over the conduct and transactions at 

issue in this action pursuant to the Act; 

6. Admit that venue properly lies with this Court pursuant to Section 6c( e) of the 

Act, 7 U.S.C. § 13a-l(e); 

7. Waive: 

(a) Any and all claims that they may possess under the Equal Access to 

Justice Act, 5 U.S.C. § 504 (2018) and 28 U.S.C. § 2412 (2018), and/or 

the rules promulgated by the Commission in conformity therewith, Part 

148 of the Regulations, 17 C.F .R. pt. 148 (2021 ), relating to, or arising 

from, this action; 

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(b) Any and all claims that they may possess under the Small Business 

Regulatory Enforcement Fairness Act of 1996, Pub, L. No. 104-121, tit. II, 

§§ 201-253, 110 Stat, 847, 857-74 (codified as amended at 28 U,S,C. 

§ 2412 and in scattered sections of 5 U.S.C. and 15 U.S,C,), relating to, or 

arising from, this action; 

(c) Any claim of Double Jeopardy based upon the institution of this action or 

the entry in this action of any order imposing a civil monetary penalty or 

any other relief, including this Consent Order; and 

( d) Any and all rights of appeal from this Consent Order; 

8. Consent to the continued jurisdiction of this Court over them for the purpose of 

implementing and carrying out the terms and conditions of all orders and decrees, including 

orders setting the appropriate amounts of restitution, disgorgement and civil monetary penalty, 

that may be entered herein, to entertain any suitable application or motion for additional relief 

within the jurisdiction of the Court, to assure compliance with this Consent Order and for any 

other purpose relevant to this action, even if Defendants now or in the future reside outside the 

jurisdiction of this Court; 

9, Agree that they will not oppose enforcement of this Consent Order by alleging 

that it fails to comply with Rule 65(d) of the Federal Rules of Civil Procedure and waive any 

objection based thereon; 

10, Agree that neither they nor any of their agents or employees under their authority 

or control shall take any action or make any public statement denying, directly or indirectly, any 

allegation in the Complaint or the Findings of Fact or Conclusions of Law in this Consent Order, 

or creating or tending to create the impression that the Complaint and/or this Consent Order is 

without a factual basis; provided, however, that nothing in this provision shall affect their: 

(a) testimonial obligations, or (b) right to take legal positions in other proceedings to which the 

Commission is not a party. Defendants shall comply with this agreement, and shall undertake all 

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steps necessary to ensure that all of their agents or employees under their authority or control 

understand and comply with this agreement; 

11. Consent to the entry of this Consent Order without admitting or denying the 

allegations of the Complaint or any findings or conclusions in this Consent Order, except as to 

jurisdiction and venue, which they admit; 

12. Consent to the use of the findings and conclusions in this Consent Order in this 

proceeding and in any other proceeding brought by the Commission or to which the Commission 

is a party or claimant, and agree that they shall be taken as true and correct and be given 

preclusive effect therein, without further proof; 

13. Do not consent, however, to the use of this Consent Order, or the findings and 

conclusions herein, as tb_e sole basis for any other proceeding brought by the Commission or to 

which the Commission is a party, other than a: statutory disqualification proceeding; proceeding 

in bankruptcy, or receivership; or proceeding to enforce the terms of this Order; 

14. Agree to provide immediate notice to this Court and the Commission by certified 

mail, in the manner required by paragraph 83 of Part VII of this Consent Order, of any 

bankruptcy proceeding filed by, on behalf of, or against them, whether inside or outside the 

United States; 

15. Agree that no provision of this Consent Order shall in any way limit or impair the 

ability of any other person or entity to seek any legal or equitable remedy against Defendants in 

any other proceeding; 

16. Consent to pay restitution, plus post-judgment interest, in an amount to be 

determined upon subsequent consent order or motion by the CFTC and/or heating before this 

Court; 

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17. Consent to pay disgorgement, plus post-judgment interest, in an amount to be 

determined upon subsequent consent order or motion by the CFTC and/or hearing before this 

Court; and 

18. Consent to pay a civil monetary penalty, plus post-judgment interest, in an 

amount to be determined in a subsequent consent order or motion by the CFTC and/or hearing 

before this Court. 

III. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

19. The Court, being fully advised in the premises, finds that there is good cause for 

the entry of this Consent Order and that there is no just reason for delay. The Court therefore 

directs the entry of the following Findings of Fact, Conclusions of Law, permanent injunction 

and equitable relief pursuant to Section 6c of the Act, 7 U.S.C. § 13a-1, as set forth herein. 

THE PARTIES AGREE AND THE COURT HEREBY FINDS: 

A. Findings of Fact 

The Parties to this Consent Order 

20. Plaintiff Commodity Futures Trading Commission is an independent federal 

regulatory agency that is charged by Congress with administering and enforcing the Act and the 

Regulations. 

21. Defendant Tinoco, a resident of El Paso, Texas, has never been registered with the 

Commission in any capacity. 

22. Defendant Kikit, is a Texas limited liability corporation, formed in September 

2020 and has its office in El Paso, Texas. Tinoco is the Managing Member of Kikit, which has 

never been registered with the CFTC in any capacity. 

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Statutory Background 

23. Section la(12) of the Act, 7 U.S.C. § la(12), defines a commodity trading advisor 

("CTA"), in relevant part, as any person who for compensation or profit, engages in the business 

of advising others, either directly or through publications, writings, or electronic media, as the 

value of or advisability of trading in: (I) any contract of sale of a commodity for future delivery, 

security futures product, or swap; or (II) any agreement, contract, or transactions in foreign 

currency as described in Section 2(c)(2)(C)(i) of the Act, 7 U.S.C. § 2(c)(2)(C)(i). In addition, a 

CTA for purposes of forex transactions, is defined by Regulation 5 .1 ( e )( 1 ), 17 C.F .R. § 5 .1 ( e )( 1) 

(2021 ), as "any person who exercises discretionary trading authority or obtains written 

authorization to exercise discretionary trading authority over any account for or on behalf of any 

person that is not an eligible contract participant [("ECP")] as defined in Section la(18) of the 

Act, in connection with retail forex transactions." 

24. An ECP is defined by Section la(18)(A)(v)(I) and (xi) of the Act, 7 U.S.C. 

§ 1 a(l 8)(A)(v)(I), (xi), in relevant part, as: a corporation, partnership, proprietorship, 

organization, trust, or other entity that has total assets exceeding $10 million; or an individual 

who has invested on a discretionary basis, the aggregate of which is in excess of (a) $10 million, 

or (b) $5 million and who enters the transaction "to manage the risk associated with an asset 

owned or liability incurred, or reasonably likely to be owned or incurred, by the individual." 

25. Regulation 5.l(m), 17 C.F.R. § 5.l(m) (2021), defines a "retail forex transaction" 

as any off-exchange agreement, contract or transaction in foreign currency offered to, or entered 

into with, non-ECPs, as described in Section 2(c)(2)(C) of the Act, 7 U.S.C. § 2(c)(2)(C). In 

common parlance, forex or foreign exchange markets typically refers to Section 2(c)(2)(C) 

transactions that are leveraged, margined, or financed. 

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26. Section 2(c)(2)(C) of the Act delineates the Commission's jurisdiction over 

agreements, contracts and transactions in forex. In relevant part, 7 U.S.C. § 2(c)(2)(C)(vii) 

provides that the Commission shall have jurisdiction over an account that is offered for the 

purpose of trading, or that trades, any agreement, contract, or transaction in foreign currency 

described in clause 2(c)(2)(C)(i). In addition, 7 U.S.C. § 2(c)(2)(C)(i)(I), in relevant part, applies 

to any agreement, contract or transaction in foreign currency that is offered to, or entered into 

with, a person that is not an ECP, unless the counterparty, or the person offering to be the 

counterparty, of the person that is not an ECP falls under one of the enumerated exceptions not 

applicable here. 

27. Digital assets such as Bitcoin are encompassed in the definition of "commodity" 

under Section la(9) of the Act, 7 U.S.C. § la(9). In common parlance, cryptocurrency typically 

refers to digital assets. 

Derivative Liability Under the Act 

28. Section 13(b) of the Act, 7 U.S.C. § 13c(b), provides that any person who, 

directly or indirectly, controls any person who has violated the Act, or regulations promulgated 

thereunder, may be held liable for such violations to the same extent as the controlled person if 

the controlling person did not act in good faith or knowingly induced, directly or indirectly, the 

acts constituting the violation. 

29. Section 2(a)(l)(B) of the Act, 7 U.S.C. § 2(a)(l)(B), and Regulation 1.2, 

17 C.F.R. § 1.2 (2021 ), provide that the act, omission, or failure of any official, agent, or other 

person acting for any ... corporation ... within the scope of his employment or office, shall be 

deemed the act, omission, or failure of such ... corporation ... , as well as such official, agent, 

or other person." 

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Solicitation Fraud, False Account Statements and Misappropriation 

30. In September 2020, Tinoco, formed Kikit, a Texas LLC, as an investment firm 

and designated himself as its Managing Member. Tinoco is also the owner and chief executive 

officer of Kikit. 

31. In October 2020, Tinoco launched a website at www.kikitnmessinv.com. The 

website describes Kikit ("About Us") as an investment firm: 

Kikit & Mess Investments is a El Paso based investment firm that offers 

customized client portfolios in the cryptocurrency and foreign exchange markets. 

Operating in downtown El Paso, our experienced traders, account executives and 

customer service representatives serve clients throughout the Borderland, 

Southwest and into Mexico to give our clients access to top portfolios available in 

cryptocurrency. With a wealth of knowledge in the industry, we strive to educate 

our clients about the opportunities they have with us and provide them the 

security, trust and proven growth to build lasting relationships, 

32, The Kikit website FAQ section functionally describes Kikit ("What do you do?") 

as a CT A that manages individual client accounts: 

We specialize in managing investment accounts based in the cryptocurrency and 

foreign exchange market. We offer customized investment plans tailored to our 

client's investment needs so that they can experience financial freedom while not 

having to waste their time trading. 

33. The Kikit website further explains that Kikit offers ("We Offer") individualized 

trading advice: 

Tailored portfolio strategies based on your individual risk tolerance. Our 

investment professionals can align your investment strategy for proper 

diversification to grow and protect your wealth. 

34. In addition, as part of its client solicitations, the Kildt website offers the 

testimonial of a purportedly satisfied client: 

"I studied Finance at UTEP but never did any trading or investments in the stock 

market. After watching how Kikit & Mess Investments operates in Forex, I 

immediately contacted them to learn more. I started with a 90-day investment and 

saw a profit in 2 weeks so I decided to extend my investment. I couldn't be 

happier with investing with Kikit and Mess." - Ruben 

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35. By referring to foreign exchange markets and forex and by marketing to retail 

(non-ECP) clients, Defendants invoked a commonly understood term that encompasses 

leveraged, margined, or financed retail forex transactions. Similarly, by referring to 

cryptocuITency, Defendants invoked a commonly understood term for digital assets, the most 

widely recognized of which is Bitcoin, which is traded on a regulated designated contract market 

("DCM"). 

36. Also, in October 2020, Tinoco opened a business bank account for Kikit and 

immediately began to receive deposits into that account from individual clients, with their 

trading funds coming via checks, wires and Zelle transfers. Tinoco was the sole signatory on this 

Kikit bank account. 

3 7. From September 2020 through the present, Tinoco deposited more than $7 .2 

million into Kikit's bank accounts, most if not all of those funds coming from at least 322 

individual clients. On information and belief, neither Kikit nor Tinoco nor any of the individual 

clients were ECPs. 

38. Defendants did not use clients' funds to trade forex or cryptocurrency, or any 

other trading in managed accounts as promised on its website. Defendants used the vast majority 

of funds from clients to pay for Tinoco' s personal expenses such as travel costs for the chartering 

of a private jet, luxury mansion, and car rentals, and, in recent months, the purchase or lease of a 

luxury automobile and real estate in the El Paso area. 

39. Defendants also used some of the deposited client funds to pay bogus "investment 

profits" to other clients in a manner akin to a Ponzi scheme. 

40. Defendants advised clients that they could access their portfolios via Kikit's 

online platform, where they could see their accounts. 

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41. Kikit did not have a commodity trading account at any registered futures 

commission merchant ("FCM") or forex trading account at any retail foreign exchange dealer 

("RFED"). Further, although Tinoco opened a trading account in his own name at an FCM prior 

to the Relevant Period, depositing a mere $10 and executing negligible trades of foreign currency 

pairs on leverage, he conducted no trading during the Relevant Period in that account. During 

the Relevant Period, Kikit had on their payroll an employee ("Employee 1 ") who was never 

registered in any capacity with the CFTC. Employee 1 promoted himself as a "broker" for Kikit 

on his Linkedln page, while Kikit's Facebook page described him as Kikit's "co-founder." Kikit 

funded a trading account at an FCM for Employee 1 during the Relevant Period which was 

minimally funded and did very little trading. 

42. During the Relevant Period, the Defendants received deposits of more than 

$7,200,000 via checks, wires and Zelle transfers and misappropriated millions of dollars in client 

funds. Kikit's original bank account had a balance exceeding $2 million in July 2021; however, 

after the bank notified the Defendants in mid-August that they would be closing the account, the 

Defendants withdrew $644,489.46 on September 1, 2021. These funds were deposited into a 

new Kikit bank account in September 2021. Tinoco and another individual who was the vicepresident of Kikit were signatories on the new Kikit bank account which had a balance of 

$769,626.60 when it was frozen by the October 13, 2021 Statutory Restraining Order entered in 

this case on October 13, 2021. 

B. Conclusions of Law 

Jurisdiction and Venue 

43. This Court has jurisdiction over this action pursuant to Section 6c of the Act, 

7 U.S.C. § 13a-1, which provides that whenever it shall appear to the Commission that any 

person has engaged, is engaging, or is about to engage in any act or practice constituting a 

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violation of any provision of the Act or any rule, regulation, or order promulgated thereunder, the 

Commission may bring an action in the proper district court of the United States against such 

person to enjoin such act or practice, or to enforce compliance with the Act, or any rule, 

regulation or order thereunder. 

44. Venue properly lies with this Court pursuant to Section 6c(e) of the Act, 7 U.S.C. 

§ l 3a-l ( e ), because the Defendants reside in this jurisdiction and the acts and practices in 

violation of the Act occurred within this District. 

Fraud in Connection with Commodities Transactions by Misappropriation, 

Misrepresentations and Material Omissions 

45. Section 4b(a)(l)(A) and (C) of the Act, 7 U.S.C. § 6b(a)(l)(A), (C), in relevant 

part, makes it unlawful for any person, in or in connection with any order to make, or the making 

of, any contract of sale of any commodity in interstate commerce or for future delivery that is 

made, or to be made, on or subject to the rules of a designated contract market, for or on behalf 

of any other person: (A) to cheat or defraud or attempt to cheat or defraud such other person; or 

(C) willfully to deceive or attempt to deceive such other person by any means whatsoever in 

regard to any order or contract or the disposition or execution of any order or contract, or in 

regard to any act of agency perfonned, with respect to any order or contract for such other 

person. 

46. By the conduct described in paragraphs 1 through 45 above, Defendants, 

willfully, knowingly, or with reckless disregard for the truth: ( 1) falsely told clients that their 

funds were being used to trade in managed cryptocurrency accounts (commodities in interstate 

commerce); and (2) misappropriated client funds for Tinoco's personal benefit, including paying 

travel costs for the chartering of a private jet, luxury mansion and car rentals, and, in recent 

months, for the purchase or lease of a luxury automobile and real estate in the El Paso area, and 

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also to pay false profits to other clients, in the manner of a Ponzi scheme in violation of 7 U.S.C. 

§ 6b(a)(l)(A), (C). 

47. Tinoco is a controlling person of Kikit and has failed to act in good faith, or has 

knowingly induced, directly or indirectly, the acts of Kikit constituting the violations of Section 

7 U.S.C. § 6b(a)(l)(A), (C). Accordingly, Tinoco is liable for each and every violation of the 

Act committed by Kikit, pursuant to Section 13(b) of the Act, 7 U.S.C, § 13c(b). 

48. Kikit is liable as a principal for the acts, omissions, or failures of Tinoco, and any 

other agents, employees, or persons otherwise acting for them constituting the violations of 

7 U,S.C. § 6b(a)(l)(A), (C), pursuant to Section 2(a)(l)(B) of the Act, 7 U.S.C. § 2(a)(l)(B), and 

Regulation 1.2, 17 C.F.R. § 1.2 (2021). 

Fraud in Connection with Forex Transactions by Misappropriation, 

Misrepresentations and Omissions 

49. Section 4b(a)(2)(A) and (C) of the Act, 7 U.S.C. § 6b(a)(2)(A), (C), makes it 

unlawful "for any person, in or in connection with any order to make, or the making of, any 

contract for sale of any commodity for future delivery , .. that is made, or to be made, for or on 

behalf of, or with any other person, other than on or subject to the rules of a designated contract 

market: (A) to cheat or defraud or attempt to cheat or defraud the other person; or (C) willfully 

to deceive or attempt to deceive the other person by any means whatsoever in regard to any order 

or contract or the disposition or execution of any order or contract, or in regard to any act of 

agency performed, with respect to an order or contract for or, in the case of paragraph (2), with 

the other person." 

50. Section 2(c)(2)(C) of the Act, 7 U.S.C. § 2(c)(2)(C), among other things, contains 

three grants which make clear that the CFTC has jurisdiction over, and that certain antifraud 

provisions in the Act apply to, retail forex: 

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a. Pursuant to 7 U.S.C. § 2(c)(2)(C)(ii)(I), forex agreements, contracts, or 

transactions described in 7 U.S.C. § 2(c)(2)(C)(i) "shall be subject to" the 

antifraud provisions of 7 U.S.C. §§ 6b and 60, among other Sections of the 

Act; 

b. Pursuant to 7 U.S.C. § 2(c)(2)(C)(iv), 7 U.S,C, § 6b "shall apply to" the forex 

agreements, contracts, or transactions described in 7 U,S.C. § 2(c)(2)(C)(i) "as 

if' they were a contract of sale of a commodity for future delivery; and 

c. Pursuant to 7 U,S.C. § 2(c)(2)(C)(vii), "[t]his Act applies to, and the 

Commission shall have jurisdiction over an account ... that is offered for the 

purpose of trading, or that trades," forex agreements, contracts, or transactions 

described in 7 U.S.C. § 2(c)(2)(C)(i). 

51. The foreign currency transactions offered by Defendants are retail forex 

transactions pursuant to Regulation 5. l(m), 17 C.F.R. § 5. l(m) (2021). Regulation 5.2(b)(l) and 

(3), 17 C.F.R. § 5.2(b)(l), (3) (2021), makes it unlawful "for any person, by use of the mails or 

by any means or instrumentality of interstate commerce, directly or indirectly, in or in 

connection with any retail forex transaction: (1) [t]o cheat or defraud or attempt to cheat or 

defraud any person; or (3) [w]illfully to deceive or attempt to deceive any person by any means 

whatsoever." 

52. Defendants violated 7 U.S.C. § 6b(a)(2)(A), (C) and 17 C.F.R. § 5.2(b) (1), (3), 

by, among other things, willfully, knowingly, or with reckless disregard of the truth: (1) falsely 

telling clients that their funds were being used to trade in managed forex accounts; and 

(2) misappropriating client funds for Tinoco's personal benefit, including paying travel costs for 

the chartering of a private jet, luxury mansion and car rentals, and, in recent months, for the 

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purchase or lease of a luxury automobile and real estate in the El Paso area, and also using client 

funds to pay false profits to other clients, in the manner of a Ponzi scheme. 

53. Defendants engaged in such acts by the use of the mails or other means or 

instrumentality of interstate commerce. 

54. Defendant Tinoco is a controlling person of Kikit and has failed to act in good 

faith, or has knowingly induced, directly or indirectly, the acts of Kikit constituting the violations 

of 7 U.S.C. § 6b(a)(2)(A), (C) and 17 C.F.R. § 5.2(b) (1), (3). Accordingly, Tinoco is liable for 

each and every violation of the Act committed by Kikit, pursuant to 7 U.S.C. § 13c(b). 

55. Kikit is liable for the acts, omissions, or failures of Tinoco, and any other agents, 

employees, or persons otherwise acting for them constituting the violations of 7 U.S.C. 

§ 6b(a)(2)(A), (C) and 17 C.F.R. § 5.2(b) (1), (3), pursuant to 7 U.S.C. § 2(a)(l)(B) and 

17 C.F.R. § 1.2. 

Fraud by a Commodity Trading Advisor 

56. Defendant Kikit, through the offer of its managed trading account services, for 

compensation or profit, has engaged in the business of advising others, either directly or through 

publications, writings, or electronic media, as to the value of or the advisability of trading in 

"any agreement, contract, or transaction described in section 2(c)(2)(C)(i)" (foreign currency). 

As such, Defendant Kikit acted as a CTA within the meaning of Section la(l2) of the Act, 7 

U.S.C. § la(12). Therefore, pursuant to 7 U.S.C. § 2(c)(2)(C)(ii) and (vii), Defendant Kikit's 

retail forex agreements, contracts and transactions and accounts are subject to Section 4o(l)(A) 

and (B) of the Act, 7 U.S.C. § 6o(l)(A), (B). 

57. From September 2020 to the present, Defendant Kikit violated 7 U.S.C. 

§ 6o(l)(A), (B), in that, while acting as a CTA, through use of the mails or other means or 

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instrumentality of interstate commerce such as the internet, electronic mail and electronic 

trading, employed a device, scheme or artifice to defraud clients and prospective clients and 

engage in a transaction, practice or course of business which operates as a fraud upon its client 

and prospective clients by, among other things: (1) falsely telling clients that their funds were 

being used to trade in managed forex and cryptocurrency accounts; and (2) misappropriating 

client funds for Tinoco 's personal benefit, including paying travel costs for the chartering of a 

private jet, luxury mansion and car rentals, and, in recent months, for the purchase or lease of a 

luxury automobile and real estate in the El Paso area, and also using client funds to pay false 

profits to other clients, in the manner of a Ponzi scheme. 

58. Defendant Tinoco is a controlling person of Kikit and has failed to act in good 

faith, or has knowingly induced, directly or indirectly, the acts of Kikit constituting the violations 

Defendant Tinoco is a controlling person of Kikit and has failed to act in good faith, or has 

knowingly induced, directly or indirectly, the acts of Kikit constituting violations of Section 7 

U.S.C. § 6a(l)(A), (B). Accordingly, Tinoco is liable for each and every violation of the Act 

committed by Kikit, pursuant to 7 U,S.C, § 13(b), 

59. Kikit is liable for the acts, omissions, or failures of Tinoco, and any other agents, 

employees, or persons otherwise acting for them constituting violations of 7 U.S.C. § 6a(l )(A), 

(B), pursuant to 7 U.S,C, § 2(a)(l)(B) and 17 C.F.R. § 1.2. 

Fraud by Manipulative or Deceptive Device or Contrivance 

60. Section 6(c)(l) of the Act, U.S.C. § 9(1), makes it unlawful for any person, 

directly or indirectly, to use or employ, or attempt to use or employ, in connection with any swap 

or contract of sale of any commodity in interstate commerce, or for future delivery on or subject 

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to the rules of any registered entity, any manipulative or deceptive device or contrivance, 

including in contravention of Regulation 180.l(a)(lH3) and 17 C.F.R. § 180.l(a)(l)-(3) (2021). 

61. The Regulations at 17 C.F.R. § 180.l(a) provide, in relevant part, that it shall be 

unlawful for any person, directly or indirectly, in connection with any contract of sale of any 

commodity in interstate commerce, or contract for future delivery on or subject to the rules of 

any registered entity, to intentionally or recklessly: (1) use or employ, or attempt to use or 

employ, any manipulative device, scheme, or artifice to defraud; (2) make, or attempt to make, 

any untrue or misleading statement of a material fact or to omit to state a material fact necessary 

in order to make the statements made not untrue or misleading; or (3) engage, or attempt to 

engage, in any act, practice, or course of business, which operates or would operate as a fraud or 

deceit upon any person. 

62. Defendants, directly or indirectly, in connection with contracts of sale of 

commodities in interstate commerce, contracts for future delivery on or subject to the rules of a 

registered entity, intentionally or recklessly: 

(a) used or employed, or attempted to use or employ, a scheme or artifice to defraud; 

including falsely telling clients that their funds were being used to trade in managed forex 

and cryptocurrency accounts and misappropriating client funds for personal use; 

(b) made, or attempted to make, untrne or misleading statements of material fact, or 

omitted to state material facts necessary to make the statements made not untrue or 

misleading; including falsely telling clients that funds were being used to trade in 

managed forex and cryptocurrency accounts and misappropriating client funds for 

personal use; and/or (c) engaged in, or attempted to engage in, acts, practices, or a course 

of business that operated or would operate as a fraud or deceit on Kikit's clients, 

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including falsely telling clients that funds were being used to trade in managed forex and 

cryptocurrency accounts and misappropriating client funds for personal use. 

63. As a result of the foregoing conduct, Defendants' fraudulent conduct violated 

7 U.S.C. § 9(1) and 17 C.F.R. § 180,l(a)(l)-(3). 

64. Defendant Tinoco is a controlling person of Kikit and has failed to act in good 

faith, or has knowingly induced, directly or indirectly, the acts of Kikit constituting violations of 

7 U.S.C. § 9(1) and 17 C.F.R. § I 80. l(a)(l)-(3). Accordingly, Tinoco is liable for each and 

every violation of the Act committed by Kikit, pursuant to 7 U.S.C. § 13(b). 

65. Kikit is liable for the acts, omissions, or failures of Tinoco, and any other agents, 

employees, or persons otherwise acting for them constituting violations of 7 U.S.C. § 9(1) and 17 

C.F.R. § 180. l(a)(l)-(3), pursuant to 7 U.S.C. § 2(a)(l)(B) and 17 C.F.R. § 1.2. 

66. Unless restrained and enjoined by this Court, there is a reasonable likelihood that 

Defendants will continue to engage in the acts and practices alleged in the Complaint and in 

similar acts and practices in violation of the Act and Regulations. 

IV. PERMANENT INJUNCTION 

IT IS HEREBY ORDERED THAT: 

67. Based upon and in connection with the foregoing conduct, pursuant to Section 6c 

of the Act, 7 U.S.C. § 13a-l, Defendants are permanently restrained, enjoined and prohibited 

from directly or indirectly: 

a. cheating or defrauding or attempting to cheat or defraud any other person; or 

(c) willfully deceiving or attempting to deceive any other person by any 

means whatsoever in regard to any order or contract or the disposition or 

execution of any order or contract, or in regard to any act of agency performed, 

with respect to any order or contract for such other person, in or in connection 

with any order to make, or the making of, any contract of sale of any commodity 

in interstate commerce or for future delivery that is made, or to be made, on or 

subject to the rules of a designated contract market, for or on behalf of any 

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person, or otherwise violating Section 4b(a)(l)(A) and (C) of the Act, 7 U.S.C. 

§6b(a)(l)(A), (C); 

b. directly or indirectly: (a) cheating or defrauding or attempting to cheat or defraud 

any other person; or ( c) willfully deceiving or attempting to deceive any other 

person by any means whatsoever in regard to any order or contract or the 

disposition or execution of any order or contract or the disposition or execution of 

any order or contract, in regard to any act of agency performed, with respect to 

any order or contract for such other person, in or in connection with any order to 

make, or the making of, any contract of sale of any commodity for future delivery 

that is made, or to be made, other than on or subject to the rules of a designated 

contract market, for or on behalf of any person, or otherwise violating Section 

4b(a)(2)(A) and (C), 7 U.S.C. § 6b(a)(2)(A) and (C) and Regulation 5.2(b)(l) and 

(3); 17 C.F.R. § 5.2(b)(l), (3) (2021); 

c. while acting as a commodity trading advisor ("CT A"), through the use of the 

mails or other means or instrumentality of interstate commerce such as the 

internet, electronic mail and electronic trading, employing a device, scheme or 

artifice to defraud clients and prospective clients and engage in a transaction, 

practice or course of business which operates as a fraud upon its clients and 

prospective clients, or otherwise violating Section 4a(a)(A) and (B) of the Act, 

7 U.S.C. § 6a(l)(A), (B); 

d. directly or indirectly, using or employing, or attempting to use or employ, in 

connection with any swap or contract of sale of any commodity in interstate 

commerce, or for future delivery on or subject to the rules of any registered entity, 

any manipulative or deceptive device or contrivance, including by intentionally or 

recklessly: (1) using or employing, or attempting to use or employ, any 

manipulative device, scheme, or artifice to defraud; (2) making, or attempting to 

make, any untrue or misleading statement of a material fact or to omit to state a 

material fact necessary in order to make the statements made not untrue or 

misleading; or (3) engaging, or attempting to engage, in any act, practice, or 

course of business, which operates or would operate as a fraud or deceit upon any 

person or otherwise violating Section 6( c )( 1) of the Act and Regulation 

180.l(a)(l)-(3), 7 U.S.C. § 9(1) and 17 C.F.R. §180.l(a)(l)-(3) (2021). 

68. Defendants are also permanently restrained, enjoined and prohibited from directly 

or indirectly: 

a. Trading on or subject to the rules of any registered entity (as that term is defined 

in Section la(40) of the Act, 7 U.S.C. § la(40)); 

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b. Entering into any transactions involving "commodity interests" (as that term is 

defined in Regulation 1.3, 17 C.F .R. § 1.3 (2021 ), for their own personal account 

or for any account in which they have a direct or indirect interest; 

c. Having any commodity interests traded on their behalf; 

d. Controlling or directing the trading for or on behalf of any other person or entity, 

whether by power of attorney or otherwise, in any account involving commodity 

interests; 

e. Soliciting, receiving or accepting any funds from any person for the purpose of 

purchasing or selling any commodity interests; 

f. Applying for registration or claiming exemption from registration with the 

Commission in any capacity, and engaging in any activity requiring such 

registration or exemption from registration with the Commission, except as 

provided for in Regulation 4.14(a)(9), 17 C.F.R. § 4.14(a)(9) (2021); and/or 

g. Acting as a principal (as that term is defined in Regulation 3.l(a), 17 C.F.R. 

§ 3.l(a) (2021)), agent or any other officer or employee of any person (as that 

term is defined in 7 U.S.C. § la(38)), registered, exempted from registration or 

required to be registered with the Commission except as provided for in 17 C.F .R. 

§ 4.14(a)(9). 

V. STATUTORY AND EQUITABLE RELIEF 

69. Defendants shall pay restitution, plus post-judgment interest, to each defrauded 

Customer/Participant/Client. 

70. Defendants shall pay disgorgement, plus post-judgment interest, to the CFTC. 

71. Defendants shall pay a civil monetary penalty, plus post-judgment interest, to the 

CFTC. 

72. The Court shall determine the amounts of restitution, disgorgement and civil 

monetary penalty and the procedures for payment and distribution of these monetary sanctions 

by further order upon: motion of the parties submitting to the Court a proposed consent order 

setting out their agreement on the amounts of restitution, disgorgement and civil monetary 

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penalty to be paid by Defendants in this matter; subsequent motion by the CFTC; and/or hearing 

before this Court. 

73. In connection with any Commission motion for restitution, disgorgement and/or 

civil monetary penalties, and at any hearing held on such a motion: (a) Defendants will be 

precluded from arguing that he did not violate the federal laws as alleged in the Complaint; 

(b) Defendants may not challenge the validity of his consents and agreements herein or this 

Consent Order; (c) solely for the purposes of such motion, the allegations of the Complaint and 

the Findings of Fact and Conclusions of Law in this Consent Order shall be accepted as and 

deemed true by the Court; and ( d) the Court may determine the issues raised in the motion on the 

basis of affidavits, declarations, excerpts of sworn deposition or investigative testimony, witness 

testimony, and documentary evidence, without regard to the standards for summary judgment 

contained in Rule 56(c) of the Federal Rules of Civil Procedure. In connection with the 

Commission's motion for restitution, disgorgement and/or civil monetary penalties, the parties 

may take discovery, including discovery from appropriate non-parties. 

74. Defendants shall cooperate fully and expeditiously with the CFTC, including the 

CFTC's Division of Enforcement, in this action, and in any current or future Commission 

investigation or related thereto subject matter of this action. As part of such cooperation, 

Defendants shall comply, to the full extent of their abilities, promptly and truthfully with any 

inquiries or requests for information including but not limited to, requests for production of 

documents and authentication of documents, shall provide assistance at any trial, proceeding, or 

investigation related to the subject matter of this action, including but not limited to, requests for 

testimony, depositions, and/or interviews, provided, however, that Defendants Tinoco (or his 

counsel) and Kikit shall promptly contact CFTC's attorneys to assert any claims of privilege or 

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other legal objection relating to testimony, depositions and/or interviews, and as to the contents 

of any records that are subject to this Consent Order and promptly cooperate with CFTC's 

attorneys to develop reasonable protocols to isolate and prevent disclosure of claimed privileged 

materials to the CFTC's attorneys and other staff who are part of the litigation team in this 

matter. Defendants are directed to appear in the judicial district in which such actions are 

pending, or in a suitable judicial district agreed to by the parties, to provide deposition testimony 

and trial testimony should such testimony be necessary. 

75. Defendants shall cooperate in any investigation, civil litigation, or administrative 

matter related to, or arising from, this action. 

VI. CONTINUATION OF RELIEF FROM STATUTORY RESTRAINING ORDER 

and PRELIMINARY INUNCTION ORDER 

A. Asset Freeze Order Prohibiting the Withdrawal, Transfer, Removal, Dissipation, 

and Disposal of Assets 

76. Except as otherwise modified by this Order and subsequent court orders, the SRO 

(D.E. # 13) and PI Orders (D.E. ## 28, 29) shall remain in full force and effect. 

77. The injunctive provisions of this Consent Order shall be binding upon Defendant 

Kikit, and upon any person acting in the capacity of agents, servants, employees, assigns, 

attorneys, and persons in active concert or participation with them including any successors 

thereof, of Defendant Kikit, and upon any person who receives actual notice of this Consent 

Order by personal service or otherwise insofar as he or she is acting in active concert or 

participation with Defendant Kikit. 

78. Defendant Kikit and its agents, servants, employees, assigns, attorneys, and 

persons in active concert or participation with them, including any successor thereof, who 

receive actual notice of this Consent Order by personal service or otherwise, are immediately 

restrained and enjoined, except as otherwise ordered by this Court, from directly or indirectly 

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withdrawing, transferring, removing, dissipating or otherwise disposing of any assets, wherever 

located, including Defendant Tinoco's and Kikit's funds, assets, including, but not limited to 

assets held in the names of Defendant Tinoco or Kikit, or in the name of Kikit & Mess Real 

Estate LLC or Kikit & Mess Exotics LLC or other property held outside the United States, in 

accordance with the Court's SRO and PI Orders. 

79. At the request of the Receiver, Defendants Tinoco and Kikit and any other person 

who has possession, custody, or control of any of Defendants' funds, assets, or other property 

shall transfer possession of all funds, assets, or other property subject to this Order to the 

Receiver in accordance with the SRO and the Pl Orders. 

80. The funds, assets, or other property affected by this Consent Order shall include 

both existing funds, assets or other property, and funds, assets, or other property acquired after 

the effective date of this Consent Order. 

B. Persons Bound by This Order 

81. This Order is binding on any person who receives actual notice of this Order by 

personal service or otherwise and is acting in the capacity of an officer, agent, servant, employee, 

or attorney of Defendants, or is in active concert or participation with the Defendants. 

C. Authority of Receiver to Execute Order 

82. The Receiver is hereby authorized to execute this Consent Order on behalf of 

Defendant Kikit and counsel for Tinoco and Kikit have no objection to the Receiver entering into 

this Consent Order on behalf of Defendant Kikit. 

VII. MISCELLANEOUS PROVISIONS 

83, Notice: All notices required to be given by any provision in this Consent Order 

shall be sent certified mail, retum receipt requested, as follows: 

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Notice to Commission: 

Robert T. Howell 

Deputy Director 

Commodity Futures Trading Commission 

Division of Enforcement 

525 W. Monroe Street 

Suite 1100 

Chicago, IL 60661 

Notice to Defendants: 

Abner Alejandro Tinoco 

c/o his attorneys 

James A. Martinez, Esq. 

David M. Mirazo, Esq. 

Mounce, Geen, Myers, Safi, Paxson & Galatzan, P.C. 

P.O. Box 1977 

El Paso, Texas 79999-1977 

Kikit & Mess Investments, LLC 

c/o Receiver Kelly M. Crawford 

500 North Akard 

Suite 2700 

Dallas, Texas 75225 

All such notices to the Commission shall reference the name and docket number of this action. 

84. Entire Agreement and Amendments: This Consent Order incorporates all of the 

terms and conditions of the settlement among the parties hereto to date. Nothing shall serve to 

amend or modify this Consent Order in any respect whatsoever, unless: (a) reduced to writing; 

(b) signed by all parties hereto; and ( c) approved by order of this Court, 

85. Invalidation: If any provision of this Consent Order or if the application of any 

provision or circumstance is held invalid, then the remainder of this Consent Order and the 

application of the provision to any other person or circumstance shall not be affected by the 

holding. 

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86. Waiver: The failure of any party to this Consent Order or of any client at any 

time to require performance of any provision of this Consent Order shall in no manner affect the 

right of the party or client at a later time to enforce the same or any other provision of this 

Consent Order. No waiver in one or more instances of the breach of any provision contained in 

this Consent Order shall be deemed to be or construed as a further or continuing waiver of such 

breach or waiver of the breach of any other provision of this Consent Order. 

87. Continuing Jurisdiction of this Court: This Court shall retain jurisdiction of this 

action in order to implement and carry out the terms of all orders and decrees, including orders 

setting the appropriate amounts ofrestitution, disgorgement and civil monetary penalty, that may 

be entered herein, to entertain any suitable application or motion for additional relief within the 

jurisdiction of the Court, to assure compliance with this Consent Order and for all other purposes 

relevant to this action, including any motion by Defendants to modify or for relief from the terms 

of this Consent Order. 

88. Injunctive and Equitable Relief Provisions: The injunctive and equitable relief 

provisions of this Consent Order shall be binding upon Defendants, upon any person under their 

authority or control, and upon any person who receives actual notice of this Consent Order, by 

personal service, e-mail, facsimile or otherwise insofar as he or she is acting in active concert or 

participation with Defendants. 

89. Authority: Kelly M. Crawford hereby warrants that he is the Receiver for Kikit 

pursuant to the Court's order entered on October 26, 2021 (ECF # 28), and counsel for Tinoco 

have no objection to the Receiver entering this Order on behalf of Kikit and acknowledge that 

the Receiver is duly empowered and authorized to sign and submit this Consent Order on behalf 

of Kikit. 

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90. Counterparts and Facsimile Execution: This Consent Order may be executed in

two or more counterparts, all of which shall be considered one and the same agreement and shall 

become effective when one or more counterparts have been signed by each of the parties hereto 

and delivered (by facsimile, e-mail, or otherwise) to the other party, it being understood that all 

parties need not sign the same counterpart. Any counterpart or other signature to this Consent 

Order that is delivered by any means shall be deemed for all purposes as constituting good and 

valid execution and delivery by such party of this Consent Order. 

91. Defendants understand that the terms of the Consent Order are enforceable

through contempt proceedings, and that, in any such proceedings they may not challenge the 

validity of this Consent Order. 

92. Agreements and Undertakings: Defendants shall complywith all of the

undertakings and agreements set forth in this Consent Order. 

There being no just reason for delay, the Clerk of the Court is hereby DIRECTED to 

enter this Consent Order of Permanent Injunction and Other Statutory and Equitable Relief 

Against Defendants Abner Alejandro Tinoco and Kikit and MessInvestments, LLC. 

SO ORDERED and SIGNED on this 25th day ofMarch 2022. 

CONSENTED 

TINOCO: 

DAVID C. GUADERRAMA

UNITED STATES DISTRICT JUDGE 

Y DEFENDANT ABNER ALEJANDRO 

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Case 3:21-cv-00237-DCG Document 67 Filed 03/25/22 Page 25 of 26
Dated:� J.: ).__ 

Mou , ti, Paxson & Galatzan, P.C. 

P.O. Box 1977 

El Paso, Texas 79999-1977 

Counselfor Defendant Tinoco 

CONSENTED TO AND APPROVED BY DEFENDANT KIKIT & MESS

INVESTMENTS, LLC: 

Dated: 

500 

Suite 2700 

Dallas, Texas 75225 

Receiver on behalf of Defendants Tinoco and Kikit 

CONSENTED TO AND APPROVED BY PLAINTIFF, CFTC 

Dated: March 22, 2022 Plaintiff, Commodity Futures Trading Commission 

ls/Susan B. Padove 

Susan B. Padove 

Senior Trial Attorney 

spadove@cftc.gov (Padove) 

David A. Terrell 

Chief Trial Attorney 

dterrell@cftc.gov (Terrell) 

Division of Enforcement 

Commodity Futures Trading Commission 

525 W. Monroe St., Suite 1100 

Chicago, IL 60661 

(312) 596-0700

Phone: (202) 390-6885 (Padove - cell)

Fax: (312) 596-0714

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