Florida Keys News
Sunday, August 28, 2011
Treasure salvors, investors settle lawsuit over emerald claim

A group of well-heeled investors gathered around a safe deposit box in a New York City bank last year, waiting to get a taste of the vast emerald fortune they were told lay in the waters off Key West.

The wealthy Manhattan accountant who had summoned them there hoped the gems would persuade them to finance a salvage operation to collect a purported $500 millions' more in gems from the sandy seafloor.

When he opened the box, however, there were no emeralds inside.

Accusations of sabotage, double crosses and backroom deals flew and sparked a complex legal drama full of colorful characters, including a billionaire former hedge fund manager, a powerful player in the Democratic party and two treasure salvors, neither of whom is named Fisher.

Word of the discovery has been largely kept out of the public eye in the past year, but that may change in the coming weeks if key players emerge in the wake of an Aug. 19 civil lawsuit settlement -- or if terms of that confidential agreement begin to leak out.

If the cache is worth what some believe, the treasure could mark the biggest Florida Keys trove since Mel Fisher discovered the 1622 wreck of the Spanish galleon Nuestra Señora de Atocha on July 20, 1985.

The Citizen gleaned the story from local attorneys, divers and treasure salvors -- nearly all of whom asked that their names not be published -- as well as court records, most of which were sealed or heavily redacted. Those directly involved have signed confidentiality agreements forbidding them from public comment.

The story begins in January 2010, somewhere near Key West. The treasure's location has not been disclosed, but legal aspects suggest it is beyond the Florida Keys National Marine Sanctuary in waters shallow enough for divers to reach the seafloor without costly submarines or other advanced equipment.

While residents were enduring one of the colder winters in recent memory, a retired doctor-cum-treasure salvor named Jay Miscovich spent much of the month diving. An unusual gem he claims he found on the seafloor propelled him, and many others, onto the perilous legal roller coaster of underwater treasure salvage.

"Sometimes guys become obsessed and suddenly a story blooms, evolves and becomes something else all together," said Don Kincaid, a veteran diver and treasure salvor with Mel Fisher during the Atocha discovery. He is not involved in the emerald cache, but said he has heard whispers of the find around town.

"More often than not," he said, "all a guy is left with is a really good story."

Boxes filled to the brim

Most court records are vague as to the specifics of Miscovich's discovery and how it unfolded, but documents filed in Monroe County circuit court went largely unredacted and gave the following account:

Miscovich, a "self-proclaimed" treasure hunter, dove on the mysterious site for many years. Its exact location, the depth of the water and whether there is any structure or ship wreckage is not in court records or has been redacted. One online treasure blog poster described the emeralds as being "scattered" over the seafloor.

Miscovich claims he found many precious, uncut emeralds and other gemstones, which he spent months collecting.

With "no experience managing a business and a mountain of personal debts," Miscovich set out to find wealthy partners willing to invest and develop a treasure salvage company to obtain more stones, according to court documents.

The result was Emerald Reef LLC, which was formed in Delaware last year after Miscovich brought in his brother, Scott Miscovich, and Dean Barr, a billionaire and former Citigroup hedge fund executive. Neil Ash, the New York accountant who found the empty safe deposit box, was brought into the fold as well.

Barr and Ash agreed to invest about $2 million, but Miscovich disputes that figure.

All the players agreed that after the business was formed, all future stones found would go into the safe deposit box, in part to lure new investors, according to court documents. Work on the site continued and most of the stones were gathered on the surface of the seafloor and required little or no excavation.

Investors allege that "several large boxes 4 feet high and filled to the brim" are sitting in Miscovich's homes in Key West and Pennsylvania.

No salvage claim has been filed in federal court and the site is not in Florida Keys National Marine Sanctuary waters, according to a Key West attorney with direct knowledge of the find and subsequent legal actions. The GPS coordinates for the site would be kept by lawyers for the newly formed company.

Just months after Emerald Reef LLC was established, however, waves of suspicion of fraud between the Miscovich brothers and the investors and vice versa caused the company to sink.

Top of the food chain

The investors' suspicions that the Miscovich brothers kept some of the stones for themselves were sustained by the empty safe deposit box and an incident on Sept. 10, 2010, according to court documents.

On that date, investors allege, Scott Miscovich met with members of the public relations firm Fleishman-Hillard and reportedly "placed several bags of bright green emeralds on a coffee table."

That came as a surprise to the investors, who believed all the stones were being kept in the safe deposit box, according to court documents. The investors allege Scott Miscovich was to give those stones to his brother, who then was to deposit them in the box.

"Contrary to what Jay Miscovich told [investors], however, he did not deposit the emeralds from the Fleishman-Hillard meeting," documents state. "In fact, although Jay Miscovich went to the NYC safe deposit box, he did so in order to remove even more emeralds, including some of the most valuable emeralds that were to be used to attract new investors."

Both sides began circling the wagons, and on Jan. 11 the investors filed a civil suit in a Monroe County court against the Miscovich brothers and another partner, Stephen Elchlepp Jr.

Judge David Audlin cited jurisdictional grounds when he threw out the case days later, as the Emerald Reef company was formed in Delaware.

By Feb. 7, the investors had filed a similar lawsuit in Delaware Chancery Court claiming much of the same as in the Monroe County legal action.

The Miscovich brothers weren't sitting idly by, though, and brought in Paul Sullivan as another partner. Sullivan was President Bill Clinton's campaign manager in 1992 and has been a major player in Democratic Party politics for more than 30 years.

"He's very close to the top of the food chain in the Democratic Party," according to the Key West attorney. "He's a friend of Scott Miscovich. I don't know what he's invested with them [Jay and Scott Miscovich], if he's invested anything."

Sullivan's involvement could mean more legal drama is looming.

"When this kind of money is involved, governments come into play," the attorney said, explaining that he wouldn't be surprised if Spain or the United States attempted to lay claim to the emeralds.

The truth will come out

In perhaps the latest in a series of bizarre turns, a longtime Keys treasure salvor who now lives in Marion County entered the legal picture claiming that some of the fortune may belong to him.

Kenneth Rose, 67, has been looking for treasure at a site between Satan Shoal and Woman Key, known colloquially as the "Kirby site," after the project's forefather, Sam Kirby, who died in 2000.

Rose was among the founders and has been working the Kirby site for more than 30 years, before the Florida Keys National Marine Sanctuary was created. He operates the website www.thelastwreck.com.

Rose claims he found an emerald slightly smaller than a chicken egg on Aug. 10 and attempted to intervene in the Delaware lawsuit, claiming the stone might belong to Jay Miscovich's site, meaning Rose may have a claim to some of that fortune. The Delaware court denied his intervention a week later.

Rose this week told The Citizen he has no plans to fight that decision, but feels like he was "set up like a bowling pin" and caught in the "perfect storm of coincidences." Someone may have placed the emerald on his site to cause headaches for the Miscoviches, the investors or both, he said.

"Emeralds just don't fall out of nowhere," Rose said. "I backed off. I think time will tell. If archaeologists get in there, the truth will come out. The truth usually comes out."

Two days after the court denied Rose's intervention, a legal settlement was reached on Aug. 19 between Emerald Reef and the investors. Sullivan, who joined the company after the lawsuit was filed, was not named in the suit.

The court sealed all the terms of the settlement.

"All of it is sealed; every bit of it," the Key West attorney said.

That means that whoever has legal right to the stones will not become public until the players come forward.

Many local treasure salvors are skeptical of parts or all of the story. If the story is a pipe dream, as they suspect, then a lot of attorneys made quite a bit of money arguing the case. The Key West attorney, however, said he has seen some of the emeralds and expects some of the players to make public statements soon.

"You normally don't see anything like this," he said. "It will be spectacular."

Rose chuckled at the thought of a big press announcement.

"I've been saying it for 30 years: Treasure hunters are one step above drug dealers," he said. "It's the Wild West out there."

alinhardt@keysnews.com

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