Florida Keys News
Sunday, July 21, 2013
No end in sight in emerald treasure row

Who is the real Mike Cunningham?

That's the question at the heart of a bitter multimillion-dollar legal fight that has pitted an amateur treasure salvor against Key West's most famous treasure family.

Cunningham is a high school dropout cum South Florida laborer and diver who purportedly sold Jay Miscovich a treasure map for $500 four years ago at the Bull Whistle Bar, 224 Duval St., according to Miscovich.

That map would lead Miscovich -- a former Pennsylvania real estate investor, volunteer firefighter, and Mel Fisher investor -- to a 154-pound cache of green emeralds in January 2010 scattered across the Gulf of Mexico seafloor in international waters some 40 miles off Key West, he said.

Miscovich testified that after the emerald discovery, he bought Cunningham off for $50,000 on April 20, 2010, at the Eagle's Club bar in Latrobe, Pa., and that Cunningham had since vanished.

But Kim Fisher -- son of storied Key West salvor Mel Fisher -- and his lawyer say they found Cunningham, and that he says he's never been in Key West nor sold a treasure map. Fisher had earlier claimed the gems were worthless and that Miscovich made up the Cunningham story to sell junk emeralds as "treasure" at an inflated price. Fisher called Miscovich a fraud and took him to court.

"The basis of our claim is that these emeralds were planted," said Fisher's lawyer, Hugh Morgan.

In January this year, U.S. District Judge James Lawrence King ruled that Miscovich and his company, JTR Enterprises -- as well as his business partner, Steve Elchlepp -- failed to prove that they found the gemstones on the seafloor.

Although JTR can keep the gemstones, King's ruling means neither Miscovich nor Elchlepp can legally claim the gemstones are "court-validated" sunken treasure, and that hurts their value.

Miscovich has appealed King's ruling to the U.S. Court of Appeals for the 11th Circuit in Atlanta, Ga.

Nonetheless, Fisher's lawyers now want Miscovich to pay their legal fees, called sanctions in legal parlance. They're using the fraud allegation via the Cunningham treasure map story in that effort.

"Since the trial, (the Mel Fisher company) found the Mike Cunningham that worked as Miscovich's handyman in Latrobe, Pa., that perfectly fits Miscovich's description," Morgan wrote in a recent court filing. "In direct contradiction to Miscovich's sworn testimony at trial, Mike testified that he did not sell the treasure map to Miscovich, that he has never been a treasure diver, that he has never even been to Key West and furthermore, that he could not have signed the agreement on April 20, 2010 for the reason that he was in jail on April 20, 2010."

The Cunningham angle is central to "proving conclusively and absolutely that not only was there fraud from the inception, but the scheme to thwart the (legal) process is ongoing," Morgan wrote.

Miscovich's response? Fisher's lawyers got the wrong Mike Cunningham. Morgan didn't provide a description of the Cunningham he interviewed, but Miscovich said the real Mike Cunningham is tall, 6-foot-4 or 6-foot-5, and has very dark hair.

Fisher's lawyers interviewed a Mike Cunningham in Pennsylvania, but the real Cunningham lives in South Florida somewhere, Miscovich said.

"Of course they've got the wrong Mike Cunningham," Miscovich said when called in Pennsylvania. "I would love to find him, to tell you the truth. We're done searches and searches and searches, but there's hundreds of Mike Cunninghams in Florida and it's very difficult."

Miscovich has been further stymied by a lack of funds, as the legal case is bleeding him dry, he said, so he can't afford to pay private investigators to find Cunningham.

The sanctions hearing is set for Oct. 7 at the Sidney M. Aronovitz federal courthouse, 301 Simonton St. in Key West.

Meanwhile, Judge King has fallen ill and the matter has been reassigned to U.S. District Court Judge K. Michael Moore.

Miscovich said he is appealing King's decision partly as a matter of principle.

"To clear my name against these bold, ridiculous lies that the Fishers have made against me and Steve (Elchlepp)," he said.

The looming question

Where did the emeralds come from?

Fisher initially alleged the emeralds were in a barrel that floated away from the 1622 wreck of the Spanish galleon Nuestra Señora de Atocha, which the family legally claimed after Mel Fisher's famous discovery of it in 1985. The wreck is about 40 miles from Miscovich's site.

He later tossed that theory, stating in court documents that former Mel Fisher diver Kent Van Raalte "was in a position to cherry-pick from the Atocha scatter trail" and that he "stole a number of emeralds" before leaving the company and went to Miscovich's business partner, Elchlepp.

Miscovich's legal team called both theories absurd, and Fisher dropped them after his gem expert, Duval Street-based Emeralds International owner Manuel Marcial, found that none of the controversial emeralds came from the Atocha.

Miscovich's 52-page appellate brief espouses another theory: that the gems came from a more modern shipwreck.

"The identity of the shipwreck and/or nature of how the gemstones were lost at sea is currently unknown to JTR," court documents state. "However, the gemstones were found in proximity to an abandoned World War II shipwreck, the USS Edward Luckenbach."

The cargo ship sank north of Key West in July 1942, hit either by a German U-boat or a U.S. defensive mine, according to Miscovich's lawyers.

"She was returning to the U.S. from various ports of call in South America with a critical load of tin ore and tungsten, which the Navy salvaged before cabling the wreck," court documents state. "It is unknown what other valuable cargo may have been on the ship (officially or unofficially)."

The emeralds' worth

Miscovich said he is still constructing a website via which to sell the emeralds. The site was up briefly before Miscovich took it down to rework it last month.

While it was up, it was headlined "Treasure Reef Collection" and showed a necklace with a $500,000 price tag as well as various gem assortments ranging from $2,495 to $9,999.

The whole lot could be worth as much as $40 million, Miscovich contends.

"We're about 90 percent complete," he said of the website.

Jewelry store owner Marcial testified at trial that the emerald lot was worth only $50,000.

Nonetheless, the stones have generated interest from buyers all over the world, including, most recently, a jeweler from China who expressed interest in the whole lot, Miscovich said.

Miscovich also claims that Jeffrey Post, curator of the Smithsonian National Museum of Natural History mineral collection, found microscopic traces of gold and silver that settled in the cracks of some of the emeralds using an electron microscope.

"The only thing they could figure is that the emeralds had been brushing up against gold and silver," Miscovich said. "That's why we believe there's more treasure down there."

A Key West tale

The mystery origin of the gems and the Cunningham treasure map are just two angles to the emerald tale that have made it ripe for Key West lore.

Former heavyweight investors who have since left the stage include Paul Sullivan -- President Bill Clinton's campaign manager in 1992 who has been a major player in Democratic Party politics for more than 30 years.

Also formerly in the loop was Dean Barr, a billionaire and former Citigroup hedge fund executive, and Neil Ash, a well-heeled New York accountant.

Ash and Barr sued Miscovich in Delaware Chancery Court in February 2011, but that row was settled out of court and the resolution sealed.

Sitting in King's courtroom throughout the December trial was Kenny Rose. The 67-year-old 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 has been working the Kirby site for more than 30 years.

He alleged early in the emerald case that the stones may have been stolen from the Kirby site and planted at the JTR site.

That drew a sharp rebuke from Miscovich's lawyers and Rose since withdrew the claim due to a lack of evidence.

"The only witnesses in this case are hammerheads and jellyfish," Rose said Friday.

alinhardt@keysnews.com

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