i. key west
U.S. Route 1, the nation’s longest north-south highway, casts out of Fort Kent, Maine, and spools down the eastern seaboard, threading Boston, New York, and Fort Lauderdale until it drifts across Manatee Creek near Homestead and bobs south into the Florida Keys, which carry it so far west that it snags on a longitude line shared with Cleveland. The 2,369-mile route ends on Whitehead Street in Key West. Here, a six-hour water-ski from Havana, a sign announces that you have reached the end of the rainbow and end of the route. The slogan sums up pretty fairly the two reasons people have been drawn to Key West over the decades. Either they came looking for gold — literally, in some cases, thanks to the shipwrecks produced by the local reefs — or they came for the freedom of ghostlier demarcations, the sort you find in a place where people stop running only because they’ve run out of road.
When Jay Miscovich came to Key West in 2009, he had treasure in mind. Miscovich was a fifty-year-old, 300-pound real-estate investor from Pennsylvania who had recently lost everything in the financial crash and was relying on his mother’s Social Security check to get by. He did not find gold, but as he would explain to a federal judge at a bench trial in December 2012, a couple of blocks from the terminus australis of U.S. 1, he soon came into possession of more than a hundred pounds of rough Colombian emeralds. He’d discovered them, he testified, while scuba diving in international waters forty miles north of the island.
The discovery seemed at first to be unambiguously good news, and yet less than a year after Miscovich’s testimony, police would find him dead of a self-inflicted shotgun wound. “I’ve loved many beautiful women, built my business and found an awesome treasure,” he said in a note he left for his friends and family. “So don’t mourn my death, celebrate my life!”
Miscovich’s appearance at the bench trial was neither his first nor his last attempt to establish his claim to the emeralds, but it did represent his fullest public account of their discovery. To hear him tell it, the story started as every treasure hunt should: in a bar, with a beer, over a map and a piece of coral-encrusted clay. In January 2010, Miscovich said, a handyman who had done work for him in Pennsylvania, a guy named Mike Cunningham, had arranged a meeting at the Bull & Whistle, a tourist bar in Key West. Cunningham bought his old boss a beer, produced from his pocket a triangle of broken pottery, and explained that he’d found the potsherd while scuba diving. He showed Miscovich a photocopy of a nautical chart. An x marked the location of the find.
At the time of the meeting, Miscovich had recently devoted himself full-time to what some people in the business, straining the bounds of professional modesty, call marine salvage. Right away, he recognized a distinctive finish on Cunningham’s artifact. “I knew from the pinkish glaze that it was definitely Spanish colonial-era pottery,” he testified later. “King Philip had a patent on it. He shipped it all over the world.” Colonial-era pottery, of course, was carried on colonial-era ships, and there wasn’t a treasure salvor in Florida, professional or otherwise, who could hear the phrase “colonial-era ship” without thinking immediately of the flota de Tierra Firme, a fleet of armed galleons that set out every year or so to carry the riches of the New World back to Spain.
Miscovich said that this was the break he’d been hoping for. The son of an elementary-school teacher and a steel-mill worker, he grew up collecting rare coins and baseball cards in Latrobe, Pennsylvania, the small town near Pittsburgh made famous by Rolling Rock beer. Though he held an M.D. from a Caribbean medical school, he’d made a life for himself as a serial entrepreneur. He had owned a trio of nursing homes and later spent the go-go years of the millennial housing boom flipping properties in and around Latrobe. But by 2009 he was more than half a million dollars in debt, so broke that he was forced to sell his dishwasher, stove, and refrigerator to pay the bills.
Miscovich had been fascinated by treasure hunting since the 1980s, when he heard stories about diving expeditions from a woman in his local scuba club. In the decade before the mortgage crisis wiped him out, he invested in half a dozen treasure outfits, including one of several companies founded by Mel Fisher, who discovered the Tierra Firme fleet’s most lucrative wreck, the Nuestra Señora de Atocha. According to Miscovich, however, none of his investments had paid off in anything more than trinkets. “I started realizing that [for] most of these treasure-hunting companies, the real treasure was making money by taking it from their investors,” he told the court. “I decided to do it on my own, and decided I could do it better.”
In 2009, Miscovich borrowed money from friends and family for his new venture. He formed a partnership with Stephen Elchlepp, a professional diver who’d been running the Key West office of one of the treasure companies in which Miscovich had invested, a private firm that was about to merge with a small publicly traded company called Oceanic Research and Recovery (ORRV). Whereas Miscovich was a diabetic who slept with a CPAP machine, and was so overweight that he had to tape up his eyelids to keep the skin from drooping, Elchlepp was built like a bullet, and trained like one too. A former Navy weapons technician who had served on an aircraft carrier, he’d learned to scuba dive when he was six years old. The two men hit it off right away.
“We talked about how neat it would be to be involved in a company that would be established and looked up to,” Elchlepp told the New Times Broward–Palm Beach in 2013. He and Miscovich, he said, “were so tired of hearing the professional communities bashing treasure hunters because they’re known as smash-and-grab guys. We wanted to change that.” The men collected a drawer’s worth of leads and promising GPS coordinates, and they spent the fall of 2009 hunting for sunken treasure. “We dove on dozens and dozens of wrecks,” Miscovich told the court in 2012. “Whenever the weather was permitting, we were out.”
The glazed pottery that Cunningham showed Miscovich at the Bull & Whistle set his heart racing. “Usually, when you get leads to possible wreck locations, you don’t get anything with them, just locations,” Miscovich testified. “Because of the fact that we actually had a solid artifact in our hand I was more excited than usual.” Despite his financial straits, he immediately bought the map and the sherd for $500.
The next day, Miscovich said, the partners set out in Elchlepp’s twenty-five-foot Grady-White and followed the chart into international waters. When they approached the spot marked by the x, they lowered a magnetometer into their wake and towed a strict pattern, a practice known as mowing the lawn. Whenever the magnetometer spiked, the men dropped a homemade buoy — a spray-painted water bottle — as a marker. After a handful of buoys were in the water, Elchlepp went down to investigate, while Miscovich, whose obesity and asthma made rapid descents difficult, manned the boat.
On their first two days out, the partners found little but pipes and scrap metal. On the third day, while exploring an area about a mile and a half from the x on Cunningham’s map, they dropped three buoys in close proximity. Miscovich decided to dive. He put on his scuba gear and followed Elchlepp down sixty-five feet to the ocean floor. The visibility underwater was limited, but when Miscovich reached the area under the third buoy, he saw a clutch of empty Budweiser cans — the cause, he suspected, of the magnetometer’s spike. Fifteen feet away, he saw something else. “I thought it was broken glass,” he testified. “It was kind of glistening on the bottom. Colors are somewhat hard to detect at distances. When I got closer to it, within a few feet, I could definitely discern a lot of green all over the bottom.”
A proud son of Latrobe could be forgiven for having green bottles on the brain, but after Miscovich picked up a handful of the scattered pieces he realized that he wasn’t holding glass. “I was rolling it around in my hands, and I’m looking and looking at it and examining it, and I’m thinking, No, it couldn’t be.” Miscovich signaled to Elchlepp that he wanted to ascend. Back on the boat, he dropped the green pieces on the lid of a white plastic cooler. “I just kind of threw them and said, ‘Look at this. I think these are emeralds.’ ”
Ecstatic, Miscovich and Elchlepp grabbed some ziplock bags and headed back underwater. “We went straight over to where all the emeralds were on the bottom, and we immediately started picking them up,” Miscovich told the court. “There was so many of them it was like picking cherries on a cherry tree.”
ii. emerald reef
Jay Miscovich’s relationship with his younger brother, Scott, had been strained for much of their adult lives, but in March 2010, two months after his discovery, Jay called to relay the news. Like his brother, Scott held a medical degree from the American University of the Caribbean. Unlike Jay, Scott also held an undergraduate diploma from Cornell, and had gone on to do a residency at Yale. A member of the ethics committee of his local hospital, he had worked as a family-practice physician in Kailua, Hawaii, for more than two decades. Scott told me recently that Jay was “totally obsessed and passionate” about finding a shipwreck. Whenever the brothers spoke on the phone, he said, Jay would “talk about his houses, then he’d flip it to treasure.”
According to Scott, Jay worked hard at everything he did. But he also had an impulsive streak. “He would be one of those guys that would go in and just buy a house on the spot from the bank. That was just the way he operated.” Though Jay’s real-estate dealings had made him a paper millionaire for a time, wealthy enough to own a 5,200-square-foot hilltop mansion, Scott worried that his brother did not have the business savvy to manage a serious find. Indeed, it was possible to see Jay’s enthusiasm for treasure hunting, his taste for the long shot, as proof that he was not ideally equipped to handle an honest-to-God treasure hoard. By the time he called Scott, Jay had already raised around $80,000 from the CEO of ORRV — Elchlepp’s previous employer — and one of the company’s principal investors. Jay had also commissioned a friend, a Pennsylvania jeweler named Michael Vesely, to set some of the emeralds in gold. But after Jay said that he wanted to sell the emeralds while touring the country in a rented motor home, Scott warned him, “You’re going to end up dead in a ditch if you think you’re going to tote around fifty to sixty pounds of emeralds. You don’t just get in a Winnebago and start driving around.”
Jay’s plans worried Scott enough that he called Dean Barr, a hedge-fund manager who had been his fraternity brother at Cornell in the early 1980s. He told Barr about the discovery, and said that Jay needed help: help setting up a business to support the salvage operation, help marketing the emeralds, and help recruiting investors he could trust. “I was reaching out for guidance,” Scott explained to the court at the 2012 bench trial, “because, being from a small town in Pennsylvania, he didn’t have that type of skill.” Barr, who held an M.B.A. from NYU, was another story: in 2005, at forty-five, he had been hired to run Citigroup’s $40 billion alternative-investment unit. After he was replaced by Vikram Pandit, Citigroup’s future CEO, Barr started his own billion-dollar private-equity firm in Greenwich, Connecticut.
In court testimony, Barr described himself as initially skeptical of Jay’s tale. Nevertheless, after Scott sent along photographs of the emeralds, Barr invited Jay to meet him in New York. In early April 2010, at the Manhattan office of Proskauer Rose, the law firm that represented Barr, Jay unzipped a green duffel bag and covered the glossy surface of a conference table with gallon-size ziplocks full of emeralds, amethysts, and quartz crystals. There were several hundred stones, Barr would recall later. Most of the emeralds were small, but some of the specimens composed of emerald and quartz were as big as a fist and weighed nearly half a pound. As curious lawyers eyed the gems, Jay told Barr about the map, though he did not mention Cunningham by name.
The two men returned to Proskauer a week later to meet the head gemologist of Christie’s, who confirmed that the stones were real emeralds. Many were not gem quality, she told them, but she also said that proof the emeralds had come from a shipwreck could multiply their value as much as eight times. Barr decided to invest. On April 19, he paid Proskauer a $50,000 retainer to create Emerald Reef LLC, a company whose purpose was to organize the recovery of more emeralds and to locate the shipwreck from which they came.
Not long after, Barr’s personal accountant, Neil Ash, also agreed to invest in Emerald Reef. (Both declined to comment for this story.) Barr and Ash, who became known as the New York investors, brought in a handful of others to back Emerald Reef, but the two men would end up contributing the lion’s share of its working capital. They quickly took charge of setting the company on a proper footing. They drew up capitalization tables for a series of limited-liability corporations and financed the purchase of a $700,000 115-foot dinner-cruise boat called the Spirit of La Salle. Scott spoke to experts in marine archaeology, and Elchlepp, the most experienced treasure hunter in the group, was tasked with hiring divers, transforming the Spirit of La Salle into a proper salvage ship, and arranging expeditions to the site, which was yielding, by Jay’s estimate, some 10 to 20 million dollars’ worth of emeralds per trip.
By the end of that summer, the emerald stash, which Elchlepp was storing in Key West, in a gun safe at his house, weighed more than eighty pounds. At Jay’s urging, the group commissioned an Oxford-trained marine archaeologist to produce a report about the find to circulate to potential investors. Jay was understandably eager to keep the coordinates of the emerald site a secret, and he was careful to tell the archaeologist a story that was somewhat different from the one he’d told his partners — it placed the find in early 2009, for instance, and made no mention of a treasure map. The archaeologist’s report noted that the emeralds were associated with no known shipwreck, and it concluded with a forgivable bit of hyperbole: “Dr. Jay was in a unique position; he had discovered treasure before the treasure hunt had even begun!”
Though Emerald Reef had attracted more than $6 million in investment commitments, for much of that summer Jay remained, in what would become a favorite phrase, “emerald rich and cash poor.” Barr and Ash had agreed to send him $10,000 each week, money that was meant to fund the company’s salvage operations and to pay down his personal debts, which, they feared, could cause P.R. problems when the find became public. But not even the weekly stipend kept Jay more than half a step ahead of his creditors. He told Ash that he was nearly homeless — “my 14 yr old car burns 2 qts of oil a week,” he wrote in an email — and that his debit card had been rejected when he tried to buy lunch for his dive crew in Key West. “I understand I and the housing crash created all my problems, and you and Dean are trying to help,” he wrote. Still, he complained, bringing the emeralds to market was “taking so long.”
Jay blamed much of the delay on the lawyers, but as the attorneys at Proskauer were learning, claiming ownership of sunken treasure was in some ways more difficult than finding it. U.S. admiralty law stipulates that the rights to sunken cargo can persist many centuries after a wreck, and the Spanish government in particular has been ruthless in pursuing treasure lost during the peak years of its transatlantic empire. For this reason, Emerald Reef’s lawyers had begun to consider a strategy to make an admiralty claim in a foreign country — the Cayman Islands, say — whose laws would make it more difficult for Spain to secure ownership. Proskauer advised Jay and his partners not to sell any of the emeralds until their legal rights were ensured.
The value of the emeralds presented another complication. At times, Jay suggested that the stash could be worth as much as half a billion dollars, but the shares he sold Barr and Ash implied a more modest valuation of $10 million. To help resolve the uncertainty, Jay, Barr, Vesely, and others traveled to Washington, D.C., in August to meet Jeffrey Post, the head curator of the Smithsonian’s gem collection. According to Post, who is by many accounts the nation’s top gemologist, Jay brought his duffel bag into a conference room in the National Museum of Natural History and “started pulling plastic bags full of emerald crystals out.” Post told me recently that there were so many emeralds on the table that he called a colleague in to help examine them. “There were thousands,” he said. “Never in my lifetime have I had that many emeralds piled up on a table in front of me.”
Like the gemologist from Christie’s, Post said that the emeralds were not well suited for jewelry. Still, the visible presence of pyrite — fool’s gold — in the stone matrices, along with the emeralds’ shape, color, and quantity, strongly suggested that they were from Colombia. “There aren’t a lot of places that, historically or even now, could produce that number of emerald crystals in one place,” he explained to me. According to Vesely, Post said that some of the stones looked like they were from Muzo, a region north of Bogotá from which the world’s most valuable emeralds originate. The group was thrilled: there was talk of permanent donations and joint exhibitions with the Hope diamond. Before Jay left the office, he promised to send Post a handful of emeralds directly from the dive site to examine under a scanning electron microscope. That afternoon, Dean Barr emailed a potential investor: “It was a home run! Jeff Post?said, and I quote, ‘This has been a once in a lifetime experience for me.’ This guy has seen everything.”
It’s a kind of green that rips your heart out,” a jeweler in Florida told me, speaking of the bluish shade of green that distinguishes Muzo emeralds from those found in Madagascar, Zambia, and even other regions of Colombia. Emeralds are far scarcer in the earth’s crust than diamonds, and the stones that come from Muzo owe their cardiectomic hue to unusually high concentrations of chromium. “That particular shade of green is part of the legend of the Muzo people in the creation of the world,” the jeweler said. According to the Muzo Indians, whose treatment by colonial Spaniards hungry for gemstones would seem to justify the theory, emeralds were a pure precipitate of sorrow: the tears, they believed, of Fura, the world’s first woman, who was left alone and inconsolable after her husband killed her lover and then stabbed himself. The Spanish, for their part, speculated that Muzo’s emeralds got their color through a process of solar ripening.
Colombian emeralds are now recognized as the finest in the world, but this was not always the case. Once the Tierra Firme fleet could be counted on to supply the Old World with an annual flood of emeralds, traders in Seville, Lisbon, and Goa began to divide stones into two categories: Oriental and Western. Just as jewelers today can sell emeralds with a shipwreck provenance for many times the price of those that lack a romantic backstory, so, too, did the lapidaries of Europe and South Asia put a higher price on stones that were believed to have come from ancient Egyptian mines. As Kris Lane notes in Colour of Paradise, his history of the emerald trade, Oriental emeralds often sold for twice as much as their Western counterparts. This distinction persisted throughout the early modern period, though recent testing has revealed that most of the so-called old emeralds were no older than the new: nearly all of the gems believed to be Egyptian were in fact from Colombia.
On September 10, 2010, Jay and several other members of Emerald Reef met at the New York office of FleishmanHillard, a public-relations firm. The sample that Jay sent Jeffrey Post, complete with sand, shells, and plant life, had revealed something remarkable. In an email that Barr read out loud at FleishmanHillard, Post said he’d found tiny grains of gold embedded in the crevices of the emeralds. “Ocean sediments typically do not contain gold grains,” Post wrote. “Their presence seems consistent with the idea that these emeralds were on the seafloor associated with gold objects for some period of time.” He speculated that there might have been “gold coins or other objects that have been slightly abraded by being rolled around in the sand and sediments.”
Scott Miscovich told me that he and the others were “flabbergasted” by the email. “Everybody thought that they were sitting on the verge of history. It was electric.” The gold particles that Post had discovered suggested the emeralds’ shipwreck provenance, but they also hinted that an even more valuable bounty was waiting to be found. “When you talk about the Spanish and what was happening back then, the emeralds were the side cargo,” Scott said. “The big cargo was the gold. These things had so much gold on them that your head spins.”
Despite the excitement, the meeting at FleishmanHillard would in fact mark the beginning of the end of Emerald Reef as a company. When Scott arrived, a few minutes later than the others, he placed several bags of emeralds on the table. The sight surprised Barr and Ash, because Jay had previously agreed to transfer the entire collection to a safe-deposit box in New York. Scott explained that Jay had sent him the emeralds months earlier, as an enticement to show potential investors in Hawaii, but Ash was wary. At that moment, he wrote later, in a legal filing, he began “to suspect that Jay Miscovich was not dealing honestly with the Investors and Emerald Reef, LLC.”
The distrust, it turned out, was mutual. Though every agreement that Jay had made with his investors had guaranteed him a majority stake in Emerald Reef, he and Scott were increasingly concerned that the New York investors were trying to wrest control of the treasure. Jay became especially unnerved when the lawyers at Proskauer sent him a draft of a will that would make Barr and Ash the executors of his estate in the event of his death. A few days after the meeting at FleishmanHillard, Jay had to remind Ash that he still owned the gems. “If I want to keep emeralds in PA,” he wrote in an email, “I will.”
On his way out of the meeting, Jay told the group that he was going to visit Emerald Reef’s safe-deposit box, at a Citibank on Park Avenue, to store the emeralds that Scott had brought from Hawaii. But when Ash went to the bank a few days later with two potential investors, he discovered that Jay had removed many of the emeralds, including some of those believed to be the most valuable. Barr and Ash complained that the missing stones had caused the investors, who were prepared to contribute $1.8 million, to walk away. Jay wrote back, “I don’t give a fuck about their money.”
In mid-September, in an attempt to keep the company together, the two sides agreed in principle to a new structure for Emerald Reef. Under the terms of the agreement, Jay would retain his majority equity stake, while his voting rights would be set at 25 percent. Barr and Ash paid Jay $180,000 to sign the agreement, but whether the term sheet was legally binding remained in dispute. By October, the operations of the company had ground to a halt, and each side was convinced that the other was trying to steal the emeralds. After Barr and Ash learned from an Emerald Reef employee that there were still boxes of emeralds in Elchlepp’s house, their lawyers hired a private investigation firm staffed by former Navy SEALs to monitor Jay in Latrobe and Elchlepp in Key West. When Elchlepp realized that the P.I.’s were casing his house, he attempted to move the emeralds, in the middle of the night, to another island in the Keys. One person I spoke to recalled that officers from the Monroe County Sheriff’s Department offered Elchlepp an escort and threatened to arrest the P.I.’s if they didn’t stop harassing him. (The sheriff’s department has no record of the incident.)
Meanwhile, Ash persuaded officials at Citibank to change the lock of the safe-deposit box. Jay was furious when he found out, and he became even angrier after he got word that the investors were contemplating legal action. In mid-December he warned that he would press charges for attempted theft if the lawsuit went forward. Despite this threat, in January 2012 Barr, Ash, and a third investor sued Jay — first in Florida, then in Delaware — for control of Emerald Reef.
For Scott, the actions of the New York investors were confirmation of a terrible fear: the sophisticated financiers whom he had brought on board to help his brother were now attempting to usurp the find. From the documents that Barr and Ash had asked him to sign, he told me, “it really looked like the entire control of the organization shifted over to Dean and Neil completely.” Scott acknowledged that Jay was not the easiest person to get along with: “He was endearing, he could make you laugh, and yet he had an aggressive, angry side. I even started to wonder if he had some signs of rapid-cycling bipolar.” Nevertheless, Scott was not about to sit by if Jay got swindled.
Back in September, when the tension with the investors had begun to mount, Scott had sought advice from Paul Sullivan, his neighbor and best friend. Sullivan was a semiretired real-estate developer who in decades past had been a political heavyweight: a former executive director of the Democratic National Committee, a campaign adviser to Walter Mondale, and a deputy campaign manager for Bill Clinton in 1992. In recent years, Sullivan has rented several Hawaiian properties to Barack Obama for the president’s annual winter vacations.
Sullivan had scoffed when he first heard Jay’s story, earlier that year. But after Scott showed him some of the emeralds, Sullivan began to advise the Miscoviches in their dispute with the New York investors. Sullivan declined to comment for this story because of ongoing litigation, but according to Scott, “Paul was involved in this because he thought that someone was trying to take this poor local guy’s treasure. He’s like, ‘These people are trying to steal this treasure! This is wrong!’ ”
Sullivan also offered to help the Miscoviches in their admiralty negotiations with foreign governments, which could be, he would testify later, “extremely sensitive and confidential.” With Scott by his side, Sullivan reviewed emails, term sheets, and other proposals — including the draft of a corporate filing to be made in the Cayman Islands. In early December 2010, he and Scott arranged an appraisal of the emeralds, which now numbered more than 50,000. The appraiser estimated that some of the individual stones, as gems, were worth more than $21,000; once a shipwreck provenance was factored in, the total value of the emeralds, by Sullivan’s calculations, was in the hundreds of millions of dollars.
Armed with this information, Sullivan flew to Colombia just before Christmas and spoke to several senior government officials about the possibility of filing an admiralty claim there. Emeralds had always been a bloody business in Colombia: well into the twentieth century, miners worked their trade with eight-foot iron rods, and could be shot on sight for stooping to pick something up off the ground. But even the Green Wars of the 1980s, which left more than 6,000 dead, were no match for the brutal conditions under which slaves and Indians worked to satisfy the colonial fiebre verde. Scott told me that his historical research had given him the idea that Spain’s lawyers might be held off by the moral charge of a Colombian claim: “I’m looking at this and saying, ‘Well, it doesn’t belong to any of you. It belongs to those people in those small villages in Colombia whose relatives died for this.’ ” Jay, for his part, was willing to give Colombia 70 percent of the find, reserving 30 percent for Emerald Reef as a salvage award. Scott told me that his brother never wanted more than a couple of million dollars. “His interest was just to get enough money to have a fleet of ships to look for more treasure.”
With Sullivan’s assistance, Jay found a lawyer to defend himself against the New York investors, a prominent corporate attorney in Delaware named Bruce Silverstein. After calling Jeffrey Post at the Smithsonian, meeting the appraiser whom Scott and Sullivan had hired, and negotiating the fee for his firm — 5 percent of the total value of the find — Silverstein took the case. Before long, he persuaded his opponents to submit to mediation. By late March 2011, the two sides agreed that the New York investors would receive a $5 million promissory note in exchange for relinquishing their claims on the emeralds, dropping their lawsuit, and releasing Jay and other members of Emerald Reef from future liability.
Though hints of the emerald find had appeared on obscure Internet forums, for the most part Jay and his partners had kept the discovery a secret. But on a cold and cloudy day, in February 2011, Jay opened the door of his house in Latrobe to find a CBS News crew on his stoop. With the cameras rolling, Armen Keteyian, CBS’s chief investigative correspondent, explained that he’d read the Florida court filings and learned about the New York investors’ attempt to make off with the emeralds. Jay invited Keteyian inside and immediately called Scott, even though it was five in the morning in Hawaii. “There’s a CBS News crew at my door,” he told his brother. “They want to know what it was like to find the greatest treasure. You’ve got to tell me what to do.”
Scott put Jay on a conference call with Sullivan, Silverstein, and Len Tepper, Keteyian’s producer and the head of investigative projects at CBS. Keteyian and Tepper told the group that they were interested in what seemed like a classic Wall Street greed story. Silverstein and Sullivan argued that going public with the find before the admiralty filing could be disastrous. “I said, ‘Look, you’re going to do a story about Jay losing his treasure to these Wall Street investors, and you’re going to cause Jay to lose his treasure to somebody else,’ ” Sullivan testified later. “We were paranoid about Spain.”
The following week, Jay, Sullivan, and Silverstein flew to New York to meet with Tepper and the executive editor of 60 Minutes, who expressed interest in running the story on his show. Tepper and CBS eventually agreed to hold the story until the admiralty claim was filed; in return, the emerald group promised an exclusive scoop “with broad access to Jay and the discovery.” Scott’s claim that from that point on “everybody gave 60 Minutes absolutely unfettered access to everything” was not entirely accurate — Jay would not disclose the source of his treasure map to Keteyian, for instance — but the network had carte blanche for its investigation. “We liked them because they were so thorough,” Scott told me. “They, in essence, continued to revalidate and relook at any question anybody might have.”
With the CBS crisis averted, the emerald group focused again on the admiralty claim. In March, the group spoke to David Paul Horan, a Key West admiralty attorney who had represented the city when it declared independence as the Conch Republic, mostly in jest, in 1982. Horan, a former Navy cadet, was wearing a salvaged gold coin around his neck when I met him recently at his office. Draped on a lampshade was a satin sash that honored his service as the secretary of the Conch Republic’s tiny, ad hoc air force. He said that he took the emerald case only after conducting a sanity-check dive. He went out with Jay and Elchlepp on the Grady-White — “a terrible boat, the bilge pump pumped out pure gas” — and found emeralds and amethysts exactly where the partners told him to look. “There was a patch of mud about the consistency of the stuff you would use for modeling,” he told me. “Some of the emeralds were actually buried in it.”
Like the lawyers hired by Barr and Ash, Horan recommended filing the admiralty claim in a foreign country. As he told me in Key West, he’d recently lost a different treasure case in U.S. federal court. “I’d just got my ass busted by Spain.” Silverstein, however, argued in an email that filing in the United States was “the only way to guarantee that you are doing the ‘right thing’ ”; he threatened to withdraw from the group if the claim was taken abroad. After persuading Jay and the others to file in the United States, he drew up papers for a Delaware limited-liability company called JTR Enterprises. The initials stood for “Jay’s Treasure Reef.”
On September 6, 2011, JTR filed an admiralty suit in the Southern District of Florida claiming 154 pounds of emeralds, amethysts, and quartz crystals. The company asked the court to grant it full title under the so-called law of finds — the “finders keepers” rule that governs abandoned cargo — or to afford it a “full and liberal salvage award,” which could mean 80 percent or more of the total, should it be determined that Spain or some other party still legally owned the emeralds.
The operating agreement that Silverstein drafted made Jay the managing member of JTR and promised him “exclusive management and control,” along with a 79 percent ownership share, of the company. The bulk of the remaining equity was divided among Scott, Sullivan, Elchlepp, and Horan. Michael Vesely, Jay’s jeweler friend from Pennsylvania, got half a percent, and an LLC owned by Silverstein and Sullivan received a 1 percent share as compensation for the cash — more than $100,000 — that they’d given Jay to help him get by after the New York investors had stopped sending checks. “We were trying to be very careful and keep this a very close-knit group of trusted people, because I had just been through a terrible experience with big Wall Street banker types. I come from a very small town. I never dealt with people that do business like that,” Jay testified later. “I’ve learned my lesson of trying to deal with any big investors.”
On September 4, 1622, the Nuestra Señora de Atocha set sail from Havana with at least forty tons of gold and silver bars, twenty cannons, and some 255,000 silver coins. It was part of a fleet of twenty-eight ships bound for Seville. The next day a hurricane swept in from the Atlantic and painted the eastern horizon black. As the seas became more turbulent, the Atocha’s sailors heaved their anchors overboard, but no amount of effort could slow their slide toward the reefs. The flint-flaked waves grew so high that their troughs showed the coral that usually hid under nineteen feet of water. On September 6, 389 years to the day before JTR filed its admiralty claim, the ship went down, sinking fifty-five feet to the ocean floor. According to contemporary reports, the Atocha’s mainmast broke off in the storm, while the mizzenmast remained visible above the surface. When a rescue launch from another ship made its way to the wreck the next morning, three Spanish crew members and two black slaves were found clinging to the exposed mast. Everyone else — 260 slaves, sailors, and noblemen — had drowned in the inboard seas.
In 1971, Mel Fisher’s salvage operation discovered an anchor and a musket ball in a patch of ocean between Key West and the Dry Tortugas. By that point Fisher had been looking for the Atocha and its fleetmate, the Santa Margarita, for years. He spent time in the Spanish national archives, built a computerized tracking system, and even enlisted the aid of psychics and dolphins. It was not until 1975, however, that he could be sure of his success. In July of that year, a crew led by Fisher’s son Dirk found a cannon that was inscribed with a number that confirmed its place on the Atocha. (Dirk, his wife, and another diver died in an accident a few days after the find, when the tugboat on which they’d been sleeping capsized.)
Ten years later, Fisher’s team discovered what he called the “main pile”: the wreck of the Atocha’s hull. Eventually the operation would raise, by his estimate, more than $400 million worth of Spanish treasure from the bottom of the sea, but Fisher was able to win clear title only after a seven-year legal fight with the State of Florida that ended up in the Supreme Court, where it was argued successfully on his behalf by David Paul Horan.
Kim Fisher, Mel’s third son, told me recently that he found his first gold coin while free diving in 1968, when he was twelve years old. He found seven gold escudos that day, and when he finished diving, he was so breathless that he nearly passed out. “It was one of the few times that I ever saw my dad upset,” he said, “because I stayed down so long.” After a childhood spent treasure hunting, Kim attended college in Michigan; he later dropped out of law school to join the family business full-time. He became president of his father’s treasure enterprise in 1998, a few months before Mel died of cancer.
Kim said that he first met Jay Miscovich around 2007, at one of the events the Fishers hold in Key West to build excitement among their investors. His sense at the time was that Jay had invested for the romance of treasure hunting, not for the money. “That’s why most people invest,” he said. “They wanted to be a part of the story.” Jay next crossed paths with the Fishers in the summer of 2011, when he met Kim’s son Sean in Key West. After Sean signed a nondisclosure agreement, Jay told him about the emeralds, and Sean suggested that his father’s company might be interested in marketing the stones.
In a statement he gave to the National Oceanic and Atmospheric Administration that fall, however, Sean said that the meeting had left him suspicious. For one thing, Jay had told his story about the magnetometer and the beer cans, but as Sean explained, “aluminum cans are nonferrous and would not read on a magnetometer.” What’s more, he said, Jay’s description of discovering the emeralds seemed implausible:
He said that they were found sitting right on top of the sand. He said he did not have to do any digging to find them. That claim is highly improbable to someone in my profession.
Sean knew that Jay and Elchlepp had hired a diver who had previously worked for the Fishers, and he expressed concern that JTR was pirating the Atocha site. He had no proof, he said, but “too many issues regarding these emeralds just don’t seem to add up.”
On October 9, the Key West Citizen published an article about JTR’s admiralty claim. “If you lost a cache of Colombian gems worth a reported half-billion dollars,” the article read, “now is the time to claim it.” The members of JTR knew that it was unlikely that they would escape a counterclaim by the Kingdom of Spain, but they were not prepared for what came next. A few days after the Citizen article appeared, attorneys for Motivation, one of the companies owned by the Fishers, filed a claim suggesting that JTR’s emeralds came originally from the Atocha — not, as Sean suspected, hidden in the wetsuits of modern pirates but contained in “a barrel or other part of the vessel or cargo” that broke off during the 1622 hurricane and floated more than thirty miles to the JTR site. As it happened, the judge assigned to the JTR case was James King, the eighty-three-year-old jurist who for nearly two decades had supervised the Fishers’ admiralty claim on the Atocha.
Mel Fisher had long been convinced, on the strength of a letter he’d seen in the Seville archive, that the ship was carrying seventy pounds of emeralds, even though none were listed on its manifest. This was not merely wishful thinking: the Fishers had discovered about six pounds of emeralds over the years, including a large emerald ring in June 2011. Kim Fisher was as good a witness on this score as anyone. In 1985, at the age of twenty-nine, he was working the Atocha’s newly discovered main pile with an airlift — essentially an underwater vacuum — when he spotted a silver salt dish. “I was holding my hand over the dish to protect it, and I was vacuuming the mud from around it,” he told me. “And all of a sudden I saw this bunch of emeralds go up the airlift pipe.” Kim rushed to turn off the airlift. The emeralds “came, literally, raining down on me. There were emeralds floating down. I was trying to grab them. I spent the rest of my dive just picking up emeralds off the bottom.”
Kim would later concede that it was unlikely that JTR’s emeralds had drifted thirty miles in a floating scrap of ship. But his lawyers explained to Horan that Motivation needed to assure its investors that the company was not neglecting its fiduciary responsibilities. Kim told JTR that he would consider withdrawing his claim if an expert of his choosing could inspect the emeralds to ensure that they didn’t come from one of his wrecks. Horan and Sullivan supported the idea, but Silverstein balked. (The proposal, he would argue later, amounted to “an abuse of the judicial system.”) Jay ultimately decided against it.
By November, Horan had hit on a strategy to shake Motivation from the case. “There were no uncut emeralds on the Atocha that were anything other than Muzo,” he told me. If he could show that some of the emeralds came from a different Colombian region, he figured, Motivation would probably drop its claim. Over Silverstein’s objections, Horan convinced Jay of the theory, and before long, two packets of emeralds were shipped across the Atlantic to laboratories in France and Switzerland.
Jay made his national television debut, on 60 Minutes, in April 2012. In the opening segment, he strides into Fred Leighton, a high-end jewelry store in Manhattan, with Armen Keteyian by his side. At the counter, Jay unloads some thirty pounds of rough emeralds from a pair of hardshell briefcases. The store’s gemologist assures Keteyian that the emeralds are “the real McCoy,” while the owner, the callow scion of a century-old jewelry dynasty, looks almost giddy. “That is an impressive pile,” he says.
Keteyian did not hesitate to press Jay about the details of his story — including his encounter with Mike Cunningham, whose name Jay refused to reveal, either onscreen or off — but the tone of the report was set by an expedition to the emerald site that 60 Minutes had filmed the previous fall. As they motor out of Key West Bight on a sixty-foot charter, Jay tells Keteyian on camera that only three people held the exact coordinates of the site; this would be the first time that he allowed anyone from outside the company to visit. Forty miles north of Key West, an underwater camera crew follows Jay, Elchlepp, and Horan down sixty feet to the seafloor. “There, sitting proper on the silty bottom,” Keteyian narrates, as the camera pans across an emerald-spotted stretch of sand, “was what we’d been promised: glittering specks of green.” Silverstein, who was present for the dive but did not appear on camera, would later testify that “three divers went into the water for less than an hour and came up with what seemed to be more than a hundred emeralds — even though they had to devote substantial time to showing a photographer what they were doing, and fending off a shark.” Back on land, Jay tells Keteyian that he’s recovered 65,000 emeralds so far.
The 60 Minutes report took its title, “The Trouble with Treasure,” from Horan’s recitation of an old wreckers’ maxim: “There’s a lot of trouble that comes with finding treasure.” Near the end of the thirteen-minute segment, Keteyian says that Jay’s “biggest trouble came in January,” after the tests in Europe revealed that “some of the gems had been treated with a jeweler’s polish or epoxy routinely used to enhance the brightness of emeralds.” Keteyian notes that the epoxy was only invented in the twentieth century, and asks Jay, “Do you believe, given what you know now, that these emeralds could have still come from an ancient wreck?” Jay takes a long breath before admitting that it’s less likely than he once thought. “I’m hoping that in the next dive season, in the next six months, that we solve this mystery.”
What Jay didn’t tell Keteyian on camera was that the discovery of the epoxy had caused a major rift within JTR. Five months before the 60 Minutes episode aired, Horan learned that the Swiss and French labs were angry: they’d discovered the emerald treatments and thought they were being pranked. The news initially left the members of JTR so nonplussed that Silverstein asked the labs to stop their testing. Only when he realized that his request might be construed as what he described in an email as “some sort of ‘cover-up’ of the preliminary results” did he ask the labs “to complete their analyses and prepare a final, written report.” At Silverstein’s urging, and with the help of CBS, JTR arranged for further examination of the emeralds, by a lab in the United States. It also spent much time trying to figure out how to explain the coating. The most likely explanations, as Silverstein would lay them out in an affidavit, were that:
(i) Jay and Steve had discovered emeralds of modern origin at the Discovery Site, or (ii) Jay and Steve had, somehow, “polluted” the emeralds through the process they used to clean them of salt from the sea. I believed then, and continue to believe, that the first explanation is most probably the correct explanation.
If Silverstein was right, then Horan’s legal strategy had worked too well: not only had he proved that the emeralds had not come from the Atocha, he had also inadvertently proved that they could not have come from any colonial ship.
Whatever the explanation, the lab reports prompted a long and angry disagreement between Silverstein and Horan about when the information needed to be disclosed to the court. There was no question that the results would be useful in persuading Motivation to drop its counterclaim. But since as much as 90 percent of the value of Jay’s emeralds depended, essentially, on their having spent centuries under the sea, disclosing the presence of modern epoxy residues could do irreparable harm to JTR’s prospects. Silverstein argued that the group should wait until the labs produced final reports that explained what the substances were and how they might have gotten on the stones. Until then, he insisted in an email, “We need to remain silent about the enhancement issue.”
Horan, meanwhile, threatened to withdraw from the case if the epoxies were not divulged to the court. By the end of February, two months before the 60 Minutes segment aired, the American lab had confirmed the presence of the epoxy resins and JTR had received a final report from the Swiss lab. Horan wrote a private email to Silverstein. He said that he had “a moral and ethical obligation,” as an officer of the court, to be candid with the judge. The failure to disclose the results of the tests, he said, “would be, in my mind, the equivalent of an affirmative misrepresentation.”
He also mentioned certain “credibility problems” that he’d had with Jay. These included an incident from the previous fall when Jay and Elchlepp had arrived at his office with twenty pounds of emeralds that had not been submitted to the court as required under the admiralty protocols. Horan had told his clients that he didn’t believe the gems could have come from the seafloor. From his sanity-check dive he knew that most of the emeralds at the site were buried under three or four inches of mud. It would take a year, he said, to collect twenty pounds of what he described to me as “all these little bitty, very, very green emeralds.” Despite Horan’s doubts, Jay and Elchlepp stuck to their story: they said they’d been withholding the stones out of a concern that Spain was going to intervene in the case.
Horan told me that the incident made him suspicious that Jay and Elchlepp were trying to supplement their find with purchased emeralds. To investigate the possibility, he bought some rough emeralds on the Internet, for $19.95. He still had a handful of them in his office when I visited: small, sharp gray rocks that hid their green until he gave them a spiteful lick. Jay and Elchlepp’s emeralds, Horan said, “were so much better than anything you could buy online that the only way you could get that many emeralds that really looked like gemstones was to buy tons of that shit and chip out the gemlets. By the time you got through you’d have enough stuff to pave from here to the end of Stock Island” — four miles from where we sat.
In phone calls and emails throughout the spring of 2012, the members of JTR discussed several possible explanations for the mysterious resin coatings. Paul Sullivan was especially fond of a theory that the emeralds had been smuggled on a cargo ship that had sunk in 1942 after stopping in Panama, about 400 miles from Muzo. Nevertheless, Horan remained uneasy.
In April, CBS notified JTR that it was ready to air its report. To ensure that 13 million television viewers didn’t learn about the emerald epoxies before Judge King did, JTR submitted a status report to the court four days ahead of the episode’s air date. The status report noted that the French, Swiss, and American labs “all believe that the emeralds they evaluated could not have been lost in the sea prior to the beginning of the 20th century.”
Five months later, Bruce Silverstein sent a midnight email in which he reassured the other members of JTR about the challenge from Kim Fisher. “Personally, I believe we have an extraordinarily strong legal position,” he said. At two-thirty that morning, he wrote, “MOTIVATION is toast!” Silverstein’s confidence was characteristic, but it was not entirely supported by the events of that summer, which had seen one development after another break in Motivation’s favor.
In July, Motivation had made outright the accusation that Sean Fisher, Kim’s son, had only hinted at: it accused JTR of stealing emeralds from the Atocha site, and asserted that Jay had purchased “modern era emeralds and amethysts of little value” to supplement the theft. Then, later that month, King ordered JTR to allow Motivation and its preferred jeweler, Manuel Marcial, to inspect the emeralds.
On August 14, Marcial brought his hand loupes, bubble-set scale, and millimeter gauges to Horan’s office. In the first of two post-examination reports, Marcial said that he could “unequivocally attest to the fact that no emeralds from the Atocha were present among those viewed.” Marcial’s second report went further: “In all my 56 years in the emerald business I have not seen emeralds of such poor quality.” Some of the stones, he wrote, “would be more appropriately described by the Colombian term ‘barro,’ which roughly translates as ‘not worth sweeping off the floor.’ ” It was now clear that Motivation had no claim on the emeralds, but Kim filed a motion for sanctions, arguing that JTR’s “unneccessary, dilatory and bad faith litigation” ought to make Jay, his partners, and his lawyers liable for Motivation’s legal fees.
Later that month, Horan announced that he was withdrawing from the case. In a letter to the other members of JTR, he explained that “the primary basis for my withdrawal is the accumulation of numerous surprises along the way,” including Jay and Elchlepp’s presentation of the small emeralds the previous fall and Silverstein’s resistance to disclosing the epoxy residue.
The bench trial that began in Key West in December 2012 saw the testimony of several members of JTR, including Jay, Scott, Elchlepp, and Silverstein. It was here that Jay and Elchlepp described, under oath, how they’d found the emeralds after three days of diving in the Gulf of Mexico, and here that many of the story’s details became public for the first time, including the name of Jay’s handyman, Mike Cunningham, and the dates of the initial discovery. For his part, Silverstein testified that he had been appalled to learn that Emerald Reef’s lawyers had advised Jay not to file an admiralty claim in the United States. “People should not be worried about what the United States Courts will do,” he said. “They will do the right thing, whatever it is.”
In a judgment that King delivered in January 2013, after the bench trial ended, he called the hearing “the legal finale to a three-year opera with a stunning libretto.” After detailing several inconsistencies between Jay and Steve’s testimonies, and calling the treasure-map tale “suspicious to say the least,” King said that JTR’s admiralty claim presented a further peculiarity: “There is no shipwreck, and no proof that the stones were ever lost in the first place.” The facts of the case, he suggested, allowed for two possibilities:
Jay and Steve legitimately found lost stones on the floor of the Gulf, or Jay and Steve placed stones acquired elsewhere on the ocean floor in order to “find” them and thereby establish an ancient provenance and greatly enhance the value of the stones.
King said that because “there is just as much support for the theory that Jay and Steve planted the stones as there is for the assertion that they found them,” he could not grant JTR a salvage award or clear title to the emeralds. And yet since Motivation agreed that the emeralds were not from the Atocha, there was no one else to give them to. Absolving himself of any judgment about “the type, source, value, provenance, or origin” of the emeralds, King ordered that the stones be handed back to Jay and Elchlepp.
Scott Miscovich insists that he never simply accepted Jay’s story at face value. In the beginning, with Dean Barr, and later with Paul Sullivan and others, he told me, he had always maintained “an aggressive posture to really try to determine the validity” of the tale. He said that Barr and Ash not only paid for private investigators and extensive background checks, they also sent Jay and Elchlepp cell phones and laptops with keystroke loggers installed. Scott said that he hadn’t objected when Barr told him about the precautions. “Jay had a wild side, and so there was a concern that Jay’s biggest enemy was Jay,” he said. “Dean was like, ‘Listen, I have a reputation. You brought me into this with your brother, and before I commit all these people, I have to be a hundred percent black and white with this.’ And I’m like, well, fine. Because I believed Jay.”
Scott had heard Jay and Elchlepp tell the story of their discovery hundreds of times, but their testimony in the bench trial, he said, put him freshly in doubt. He imagined Steve’s Grady-White, not much bigger than a U-Haul trailer, out on the water. “Really? You’re going down that often and you’re in a boat that’s that size? And you’re making all these different bounce dives? I was like, this just isn’t passing my sniff test for knowing Jay and his physical condition. I was on Steve’s boat, that Grady, and it is not a wonderful seaworthy vessel.” Scuba diving, he reminded me, was taxing even for people who were not asthmatics: water is 800 times as dense as air, and two active morning dives can easily wipe out a healthy person for the better part of a day. “I just started thinking about the physicality of the whole thing, and, wow, this really sounds crazy.”
After returning to Hawaii from the trial, Scott confessed his skepticism to Sullivan. At the hearing, Jay had said that the date of his meeting with Mike Cunningham was easy to remember because it was also Elchlepp’s birthday. But when Scott sat down at a computer to do some checking, he learned that during the week of the initial emerald discovery, Key West had winds gusting to thirty miles per hour and its coldest temperatures since 1876. Scott bought the archives of the Key West newspapers. He showed them to Sullivan and said, “Holy cow, something’s way wrong here.”
Scott’s sense that something was amiss was reinforced when he learned, in late January 2013, that Mike Cunningham — a Mike Cunningham, anyway — had been found. Once Cunningham’s name was revealed at the trial, investigators working for Motivation and the New York investors used it to track down a handyman by that name who had done construction work for Jay in Latrobe. Cunningham said that he knew nothing about a treasure map, and had a persuasive alibi: on the day Jay claimed to have met him in Key West, Cunningham had been serving time in a Pennsylvania prison for vehicular homicide. When confronted with the information, Jay insisted that he knew more than one Mike Cunningham, but Scott was unconvinced. “He has a little crew of five or six guys that work for him, and he just happens to have two Mike Cunninghams working for him? No way.”
Scott had been preparing for a hiking trip to Patagonia, and before he left, in mid-February, he made a decision. “There was no way I wanted to leave knowing this,” he said. “And that’s when I called the FBI.” Scott told local agents everything he knew and, after his trip, spoke to a prosecutor in Florida over Skype. The next day, he called Jay. “I said, ‘I want you to listen. I don’t want you to talk. I just finished four hours with the FBI. You’re going down. You’re going to jail. What you did is unconscionable. Until you step forward and you take responsibility for the deception and the lies and everything you’ve done to me and my family, don’t bother talking to me.’ And that’s the last I ever spoke to him in his life.”
Lisa Martorano first met Jay in 2005, when she was twenty-six years old, after answering his ad for a bookkeeper. Five days a week for the next four months, she drove an hour each way between her home, in Pittsburgh, and Latrobe, where she would work with Jay in the basement of his mother’s house. A petite brunette with a finance degree, Martorano took on whatever needed doing: filing Jay’s receipts, cutting his paychecks, preparing his taxes, balancing his checkbooks. She told me recently that she came to think of Jay as part of her family, even though she was put off by his excesses — his fondness for all-you-can-eat Chinese buffet, for instance, and for the women he paid for sex. “We had an awesome relationship,” she said. “We went everywhere together.”
Martorano moved to Florida in 2008, but she kept in close touch with Jay by phone. In April 2010, around the time he met Dean Barr, Jay told her about the emeralds. He asked her to come back to work, and for the rest of that summer, from her house in Pensacola, Martorano produced detailed spreadsheets that tracked the money swashing into and out of Emerald Reef’s bank accounts. She said that Jay often made the task difficult, especially once he started receiving checks from Barr and Ash. “All the money that Dean and Neil were pumping into his bank account he was wasting on these chicks,” she told me. “I was like, okay, you’re spending five hundred dollars in cash on this girl, and you’re telling me, ‘Don’t put that on the books’? How many times am I not supposed to do that?” Elchlepp, she said, was even worse: “He never gave me anything. I was like, ‘Where did twenty thousand dollars go to?’ And Steve couldn’t answer the question.”
Martorano conceded that in retrospect, much of her experience sounds “super shady.” At the time, however, she had good reasons to suppress any qualms. Jay’s discovery had attracted the sort of people who run hedge funds, manage presidential campaigns, and find their names printed in lists of the country’s top lawyers. Working for Jay meant trips to New York, Key West, and California, and, of course, it meant a weekly paycheck. What’s more, Jay’s susceptibility to paranoia and panic attacks, his preference for conducting his affairs within the obscuring haze of a cash economy, and his readiness to confront doubt with whatever half-truth lay nearest to hand all predated the appearance of the emeralds. It’s not that Martorano didn’t recognize that Jay was a bullshitter, a paranoiac, and, in her words, a horndog. It’s that he’d been like that for as long as she’d known him. The emeralds didn’t change anything.
Martorano said that her first clue something was wrong came in October 2013, when Jay told her, “My lawyers are dropping me. I’m fucked. I don’t know what to do.” One by one, his lawyers were walking away from him. The firm that had replaced Horan said that it would no longer represent Jay unless he recanted the Mike Cunningham tale and resolved other inconsistencies in his testimony. On October 17, the firm filed a motion to withdraw as JTR’s counsel. A week later, Silverstein said that he, too, would no longer represent Jay personally, though he offered to maintain his relationship with JTR if the company selected a new managing member. Jay responded, “I am stepping down Oct. 29th at 5 pm est.”
The previous eight months had not been easy for Jay. He was prone to depression, and in August his mother died; now not even Xanax could dispel his black moods. According to Michael Vesely, the jeweler, Jay had become so paranoid that he had taken to sleeping in a closet. At times he talked of paying back everyone who had invested in the emeralds, for which he figured he’d need $8 million. But he also spoke to Martorano about selling the entire stash and fleeing to Malaysia.
Jay never followed through with either plan. Instead, in October, he sent Martorano a manila envelope that contained a sealed letter addressed to Joe Sweeney, Kim Fisher’s right-hand man. Jay asked her to post the letter from anywhere other than her own zip code. Curious, Martorano opened the inner envelope. As she began to read, she recalled later, “all these things started to come together in my brain. I was like, holy shit.”
In the letter, Jay claimed to be an anonymous former employee of Odyssey Marine Exploration, a treasure company that had helped JTR arrange the European tests. He laid out an elaborate conspiracy theory that accused Greg Stemm, the CEO of Odyssey, of salting the floor of the Gulf with hundreds of pounds of rough emeralds from Colombia. Jay mentioned, accurately, that Odyssey had recently lost a half-billion-dollar admiralty case to Spain. He went on, however, to claim that Scott, Sullivan, two lawyers from Hawaii, and Stemm — whom Jay had held a grudge against ever since the epoxy episode — had conspired in Hawaii “for 32 straight days of top secret meetings” to invent an emerald find that would drive up Odyssey’s stock price. The letter claimed that Mike Cunningham was given the map and pottery “to setup Jay M. and Steve E.” Stemm, it said, “still plans to takeover this site and salvage when the smoke clears.”
Jay’s letter appears, for the most part, to be a congeries of misinformation — Stemm did meet with Scott, Sullivan, and some lawyers in Hawaii to discuss a possible partnership, but there is no evidence that Odyssey had anything other than a glancing relationship with JTR. Nevertheless, Martorano believes that Jay was trying “to tell the truth of about half the stuff that happened.” It was, she said, “basically a confession.” The suggestion of a scam caused her to reinterpret one incident from the past in particular. In August 2010, she and Jay had met in Orlando to drive down to Key West. Before heading south, Jay told Martorano that he needed to stop off in Jupiter, on the east coast of Florida, to pick up some emeralds from a crew of divers who had been working his site in secret. Martorano was surprised, but she did not protest, not even when Jay told her that she had to wait at a nearby McDonald’s while the handoff took place. After he returned, an hour later, she saw that his duffel bag, which had previously held $20,000 in cash, was now filled with emeralds in gallon ziplock bags.
At the time, there was enough confidentiality around Emerald Reef that Martorano could accept the notion that Jay had mysterious divers working for him, but she told me that she had been confused when he showed Elchlepp the stones in Key West later that day. “I was like, why is he showing Steve these emeralds when Steve was supposed to be looking for them in the first place? I was like, okay, I’m the stupid person here.”
For weeks, an FBI agent who had sat through several of the admiralty hearings in Key West had been trying to contact Martorano, but she’d been too scared to take the calls. After recovering her wits from reading Jay’s letter, she changed her mind. Martorano read the letter to the agent over the phone. The agent told her, “Thanks for breaking my case.”
On October 29, her thirty-fifth birthday, Martorano got a call from the FBI agent. When she learned that Jay had committed suicide, she collapsed on the floor. “I hung up on her,” Martorano said. “I just went into the fetal position.”
In the days or hours before his death, Jay went to his local copy shop and had a suicide note printed on a two- by three-foot posterboard, which he propped on an easel in his apartment. According to local news reports, he called 9-1-1 at around three o’clock in the afternoon on October 29 and told a dispatcher what he planned to do. Police attempted to trace his cell phone and sent a helicopter to look for him, but by the time they reached him, in the yard of the hilltop mansion that he’d lost to foreclosure, Jay had killed himself. A county coroner pronounced him dead at 5:15, fifteen minutes after he’d promised to step down as the managing member of JTR.
Martorano believes that Jay’s decision to kill himself on her birthday was significant, as was the place where it happened. She told me that she was certain Jay went to the mansion because of an afternoon they’d spent together long before the emeralds entered his life. She was always trying to get Jay to eat healthier food, she said, and one day she persuaded him to skip his usual Wendy’s hamburger. They visited Subway instead, and brought their sandwiches back to the mansion for an impromptu picnic. It had rained earlier, so Martorano spread a tarp, and the two of them ate lunch while watching the deer that had come out to graze. “When he went to commit suicide,” Martorano said, “that’s exactly where he went.”
Martorano gave a speech at Jay’s funeral, which was attended by Michael Vesely, Jay’s older brother, and one of the Emerald Reef divers, who drove out from Wisconsin. Everyone else stayed away: Elchlepp, Sullivan, Silverstein, even Scott. The other people at the funeral, Martorano said, were “only worried about what money he had promised them. They figured they were going to benefit, in some way, shape, or form, from the emeralds. Nobody there gave a shit about him. Nobody.”
Nine days after Jay’s suicide, Martorano gave a sworn statement in front of Neil Ash and a lawyer for Motivation. The lawyer pressed her about the nature of her relationship with Jay and what she might know about a possible fraud. Vesely told me that Jay was in love with Martorano, but she maintained in the statement, as she does today, that she was Jay’s employee and confidant, never his lover or accomplice. The lawyer asked Martorano whether she still believed that Jay had discovered the emeralds on the bottom of the ocean. “As I sit here today,” she said, “I feel it is all a big hoax.”
On November 19, Motivation proposed to amend its motion for sanctions against JTR and its lawyers. “By claiming a treasure or ship wreck provenance for the cheap emeralds that Miscovich had purchased,” the proposed motion argued, Jay “could achieve two goals — he would have marketable title to the emeralds and increase the value of the emeralds and he could claim to be a great treasure hunter.” The motion also asserted that Silverstein had unethically taken “a personal financial interest” in the emerald find without disclosing that interest to the court — namely, the 1 percent held by his and Sullivan’s LLC — and that he had worked to further the crime. “As it became increasingly clear that JTR was engaged in a fraudulent conspiracy, Silverstein faced a decision,” Motivation argued. “He was too heavily invested personally and financially to withdraw, so he joined the conspiracy.” In an affidavit, Silverstein responded, “I have never committed a fraud on any Court (or on anyone else), and I have never knowingly assisted anyone else who has done so.”
To buttress its accusation against Jay, Motivation cited bank records that had been disclosed in anticipation of a sanctions hearing. In his testimony at the bench trial, Jay had claimed to be in Florida on January 6, 2010, the day Mike Cunningham called to set up the meeting at the Bull & Whistle. But the bank records showed that Jay had withdrawn money from an ATM in Latrobe that day. Most damningly, Motivation was able to use the bank records, along with Martorano’s statement, to suggest an answer to the crucial question of where Jay had obtained the emeralds. Motivation noted that Jay had withdrawn money, on at least one occasion, from an ATM at 3889 Military Trail in Jupiter. Five hundred feet away, just a mile from the McDonald’s where Martorano had been left waiting, was a stucco strip mall with a terra-cotta roof. There, tucked between a Jimmy John’s and a day spa whose storefront window once promised hot stone envy, an aspiring lapidary or an impatient treasure hunter could find a store called JR Colombian Emeralds.
In January 2014, Jorge Rodriguez, the owner of JR Colombian Emeralds, appeared as a witness in the sanctions trial, which was held before Judge K. Michael Moore. (King was ill.) Rodriguez testified that Jay Miscovich had visited his store six times between February and September 2010 and had purchased some eighty pounds of rough emeralds, a smaller quantity of higher-quality cut stones, and two emerald rings for around $80,000, most of it in cash. Rodriguez also said that Jay had returned to the store just after the 60 Minutes episode aired and had threatened him not to tell anyone about the sales.
Kim Fisher told me that Rodriguez’s testimony confirmed all of his suspicions. Besides explaining where Jay obtained more than half his hoard, the revelation also suggested the origin of the gold grains that Jeffrey Post had identified: a working jewelry shop like Rodriguez’s would have been awash in microscopic gold dust. At the sanctions hearing, Moore explained the novelty, and, for him, the particular offensiveness, of Jay’s crime:
He wants to make four times or eight times as much per emerald than what they’re actually worth. And . . . his artifice to defraud is to use the United States District Court.
v. mother lode
The judicial fallout from Jay’s story — what King would eventually describe as “a criminal conspiracy against the United States District Court for the Southern District of Florida,” as well as a “total, absolute, outrageous, lying, miserable fraud by some miserable people” — is ongoing. In June 2014, Motivation was granted a $179,000 award for legal fees and expenses from JTR and $1.2 million from Jay’s estate — a nice gesture, were it not the case that the financial wherewithal of both entities may depend entirely on the street value of 154 pounds of aquarium gravel. In another motion, which produced another trial, Motivation sought sanctions against Silverstein and Sullivan personally, as well as against Silverstein’s law firm.
King let Silverstein’s firm and Sullivan off the hook in December 2014, and three months later he ruled that Motivation had not summoned enough evidence to prove that Silverstein knew about the fraud or acted in bad faith to perpetuate it. He did, however, note that Motivation’s failure to prove Silverstein’s guilt “neither establishes [Silverstein’s] innocence nor forecloses the possibility of future civil or criminal liability.” (Motivation has appealed the rulings in federal appeals court.)
Horan told me that Sullivan “was not a co-conspirator, he was a referee,” and he suggested that Sullivan had stayed active in JTR so long out of loyalty to Silverstein. But he was less sure that Silverstein had no part in furthering the scheme. “I mean, come on, at some point where does the credibility stop?” he said. “It’s called deliberate indifference.” (Silverstein did not respond to several interview requests, and a representative from his firm declined to comment.)
In October 2014, an LLC formed by Neil Ash filed suit on behalf of the New York investors against Sullivan, Silverstein, and Silverstein’s law firm. Arguing that Ash, Barr, and a handful of others had lost $1.6 million in their investments in Emerald Reef, and another $1.8 million in legal expenses, the lawsuit sought damages of about $14 million. The complaint named as co-conspirators not only the core members of Emerald Reef and JTR — Jay, Scott, and Elchlepp — but also several people connected with ORRV, the publicly traded treasure company where Elchlepp had worked when he first met Jay. They included Scott Heimdal, ORRV’s CEO; Peter Tobia, a sometime consultant for the company; and Anthony Santelli, an Ohio venture capitalist who had invested with Heimdal in 2009. Their presence in the complaint is based on a theory, developed in part by Motivation, that the original scam was supposed to be a pump-and-dump scheme similar to what Jay described in his letter to Joe Sweeney: the fraudulent emerald find would lift ORRV’s stock.
The theory has not been tested in court, and it does not explain one enduring mystery about the case, namely, how the eighty pounds of emeralds that Jay had bought from Rodriguez became the hundred or so pounds that he brought to court. But if correct, it would perhaps explain why, in April 2010, Jay was issued 25 million shares of ORRV, right around the time that the price of the company’s stock rose 400 percent, to a penny a share. Scott told me that Jay never received the shares, which were kept in a trust for him after a warning from the lawyers at Proskauer, but he said that he was otherwise convinced. “That was the whole thing: there was a whole idea to report a big claim and try to drive that stock up.”
In a deposition that he gave the day after Jay committed suicide, Peter Tobia said that he first learned about the emeralds in late January 2010, when Jay visited Tobia’s wife’s condo in Indialantic, Florida, ninety miles north of Jupiter. Jay, whom Tobia described as “very nervous,” said that an acquaintance of his had found emeralds on the Atlantic coast of Florida. After Jay said that the treasure had been found in the dunes on the beach, Tobia suggested that the ultimate origin of the emeralds must lie offshore: “They obviously came from a shipwreck,” he remembered telling Jay. “I mean, they weren’t just dropped there by an airplane. They came from a shipwreck and washed onshore like most treasure does.” On a Skype call with Jay and Tobia later that day, Heimdal agreed to invest in the find, even though Jay, who was about to be evicted from his mansion, had no emeralds to prove his tale. “He didn’t have a pot to piss in or a window to throw it out of,” Tobia said. “He had a story.”
According to Tobia, Jay returned to Indialantic not long after receiving the first wires, for about $5,000, from Heimdal. He brought with him five to seven pounds of rough emeralds. (Tobia said in his deposition that he had no reason to believe that Jay had purchased the emeralds.) In the weeks that followed, Santelli also agreed to invest. On the strength of Tobia’s recommendation — the two men had worked together previously — but without seeing the emeralds himself, Santelli gave Jay $60,000 in exchange for a 2 percent royalty.
On a phone call earlier this year, Tobia, who never invested his own money with Jay, told me that the original arrangement was “supposed to be an ORRV deal.” He and Heimdal would each get a 5 percent stake in the find, and the company would receive another 10 percent. He said that ORRV was in deep financial trouble at the time, and that he and Heimdal had “tried a lot of things to pump the stock.” Nevertheless, he was adamant that these were all good-faith — and legal — efforts to save the firm; he had nothing to do with arranging a fraud. Santelli, too, told me that he never saw any evidence of a pump-and-dump scam.
When I spoke to Heimdal, he said that he eventually gave Jay about $30,000, most of which came from his company’s accounts, and that he was Jay’s “first victim.” He claimed that ORRV’s stock spike had more to do with “a fantastic project involving five shipwrecks in the Philippines” than with the emeralds, and said that he did not sell a single share during that time. “There was definitely no pump-and-dump scheme for ORRV,” he said, “because I never put out any news until I was forced to at the end, when the rumor mills came out. You can’t dump if you don’t pump, if you know what I mean.”
During the 2012 bench trial, Elchlepp testified that he’d been diving with Jay when the emeralds were initially found, in January 2010. Nevertheless, Tobia and Heimdal both said they were certain that Elchlepp had no involvement with the apparent discovery until early March 2010, when the members of ORRV gathered in Key West to celebrate the find. At the party, Jay set out on a table the emeralds that he’d bought with the money from Heimdal and Santelli. According to Tobia, Elchlepp “was totally, totally shocked, surprised.” Tobia said, “I don’t think Steve had ever seen an emerald in his freaking life.” In December 2013, Elchlepp was notified that he was the target of a federal investigation; he has not responded to multiple requests for comment. The FBI office in Key West says that its investigation into the case is ongoing.
Michael Vesely, the jeweler from Pennsylvania, was the first person, as far as he knows, to see Jay in possession of an emerald. In a recent conversation, Vesely told me that he met Jay in the parking lot of a restaurant in early January 2010, two weeks before Jay visited Indialantic and right around the time he would later claim to be diving with Elchlepp. “It was freezing cold, and we’re sitting in the car. He proceeded to reach in his pocket. He pulled out a baggie with four green stones and a white-colored stone.” Jay claimed that he’d tripped over a Budweiser can while metal detecting on the beach in Florida, which led him to the emeralds. A few days later, Jay wrote to Vesely: “Just you and me. This is going to change your life, and I need help with it. The big news is this is my wreck. Nobody else but me!!!!”
Vesely said that one of Jay’s earliest ideas was to encourage Anheuser-Busch to launch a marketing campaign about the find. “He said, ‘They’ll give us a million dollars.’ ” Heimdal, too, told me that Jay pestered him constantly about the notion. He dreamed of a commercial that would show his acquaintance finding a Budweiser can while working the beach with a metal detector. When the acquaintance reached down and pulled the can out of the way, a small green stone would roll onto the sand — the first emerald in what would become a hundred-pound stash. “Anytime I talked to him,” Heimdal said, “it was always, ‘Hey, we’ve got to go to Anheuser-Busch. We can get some money, easy money.’ ”
Vesely told me that he thinks it possible that Jay hatched a plan with Heimdal and Tobia to pump and dump ORRV stock, not least since Jay encouraged him to buy shares of the stock in early 2010. He also has doubts, like many people I spoke to, that Jay could have planned something so elaborate on his own. His friend, he said, was “one of the most fun-loving, laid-back people I ever met” but also “a very, very, very simple man with very simple means.” Vesely insists that he believed Jay “hook, line, and sinker” right up until the end, even though the narrative of how the emeralds were found shifted significantly over time. Jay, he said, “changed the story on everything he did in his life. You could be sitting with him and having a beer — it went to three beers to you were drinking shots to you were having chicken in a restaurant.” It was only when Jay started talking about jail and suicide that Vesely began to wonder whether it was all a hoax. And yet despite all that he now knows about the case, he repeated another refrain that I heard from several people: “I truly believe that Jay found something, still in my heart.”
During the admiralty case, Kim Fisher spoke often of wanting to protect the integrity of the treasure industry, a claim that, however sincere, might sound to some ears a little like a casino owner inveighing piously against the evils of the neighborhood numbers racket. As Kim’s father knew well, treasure hunters no less than poets dwell in possibility, a principality that is not well suited to citizens of intricate scruple. In the years before he found the main pile of the Atocha, Mel Fisher was often so stretched financially that he became notorious around Key West for not paying his employees and for running up lengthy bar tabs. David Paul Horan recalled Mel showing him a gold bar from the Atocha that he said was worth ten thousand dollars. “The next time I see him, that gold bar is a hundred thousand dollars. I go, ‘Mel, how’d you come up with a hundred thousand?’ And he goes, ‘It’s unique. Tell me where you can get a bar that’s identical to that for less than a hundred thousand dollars.’ ” Horan laughed and shook his head. “What’s amazing is that a lot of times he was right!”
It may be that every treasure hunter’s first and most gullible mark is himself. Scott, at any rate, believes that Jay was driven less by money and attention than by the allure of treasures yet to be found. “I think he saw a chance to turn his misfortunes around, and he envisioned himself as the next Mel Fisher or greater. It wasn’t necessarily this find that was going to make him. He saw it as a way to finance looking for treasure the rest of his life. He could see himself with a whole fleet of ships, always searching for the next Atocha.”
At one point in the summer of 2010, Scott said, he was in Key West with Jay and Dean Barr when someone told him that salting the sea with transplanted treasure was an old trick to claim provenance or avoid taxes. “Literally, that’s the first time we had thought of that. And so I talked to Dean. The next morning, we pulled Jay down to breakfast, sat him right at the table, and said, ‘What’s going on? Is this a possibility? Did you do this?’ ” In that and other moments of doubt, Scott said, Jay stuck to his story. Scott maintains that he and Barr and everyone else thought that they were doing their due diligence; in the early months after Emerald Reef was established, he said, “I must have had ten thousand emails. There was just constant scrutiny.” And yet when I finally asked him what enabled the scam to last for so long, he conceded, “If you look in retrospect, everybody wanted to believe.”
Last September, I went out into the Gulf of Mexico to visit the Atocha salvage operation with Kim Fisher. He had plans to host a handful of investors on the J. B. Magruder, one of Motivation’s main salvage ships. When Kim arrived at the Key West Harbour, in shorts and a blue vented boating shirt, he explained that he was wearing a silver piece of eight around his neck because his usual gold doubloon was in the shop getting reset. At sixty, Fisher was taller and still trimmer than many of the divers he employed, but his speech and his gait had a halting, irregular pace that suggested someone whose acquaintance with the rhythms of terrestrial life was recent, and possibly reluctant.
After the clutch of his twin-engine outboard caused some confusion — “Someone pushed a button they weren’t supposed to push,” he muttered — Fisher took a drag from a slender black e-cigarette and steered us out of the marina. We passed a cruise ship that loomed like an iceberg over Key West and took advantage of a slack tide to speed along at forty-five knots. The sky was fish-belly white, darkened only in streaks by Navy jets practicing carrier landings at a nearby base. The Marquesas Keys — named for the Marquis of Cadereyta, who camped there in 1623 while attempting, without much luck, to salvage the Atocha — appeared first on the horizon like a family of floating caterpillars; when we passed on their southern side, Fisher pointed out a refugee boat from Cuba that had been hauled up among the mangroves.
Thirty-four miles west of Key West, we found the Magruder. Most days the ship’s five divers work underwater with the help of its “mailboxes,” huge steel ducts that redirect the ship’s prop wash to punch holes in the sandy bottom. Now, pressed into service to entertain the investors, the crew was hooking up the airlift, the same mechanism Fisher was using when he hit the pocket of emeralds in 1985. The airlift worked by sucking seafloor from fifty feet down and dumping it into a sluice box that was set up topside. Whatever the investors recovered from the grate of the sluice box, within limits, they would be allowed to keep.
Among the investors visiting the Magruder were a former gold-mine owner, a Web developer for Disney, and an independent treasure salvor. A large and amiable Canadian who introduced himself as an underwater photographer started investing with the Fishers, I learned later, after winning $21 million in the lottery. Motivation still promises its investors a share of whatever its divers bring in, but the investors I met all seemed untroubled that the returns had proved more experiential than financial. They were all fluent in the lore of the Atocha and Mel Fisher’s efforts to find it, and they spoke in detail about the dopaminergic thrill of finding their first treasure, whether a silver cob plucked off a coral ledge or a rough emerald rescued from the Magruder’s airlift. Later that week, the Canadian would say that “looking for something in a hole is way better than winning the lottery.”
Fisher couldn’t, or wouldn’t, tell me whether Jay Miscovich ever visited the Magruder, but the ship’s captain, Andy Matroci, thought he remembered Jay coming out to sift for emeralds during his time investing with the Fishers. Matroci said that he’d started working for Mel Fisher on a whim, in 1981, and had originally planned to stay on for just one year. Four years later, he discovered the Atocha’s main pile. Swimming out with a partner across a plain of rippled sand, he saw a three-foot rise in the seafloor topped with what looked like loaves of black bread. The loaves were silver bars. The main pile yielded thirty-five tons of them, along with 154,000 silver coins, several hundred pounds of gold, and, as Matroci put it, “anything you could imagine on a Catholic altar or a wealthy Spaniard’s dinner table.” After he realized what he’d found, he said, he and his dive partner hugged underwater. “I figured to myself, it’s never going to be quiet down here again once we surface. So let’s swim around it and look at it. We swam around two times pointing at different things, and then we went up and told everyone, ‘It’s the mother lode of the Atocha.’ When we came up, we were a hundred feet away from the boat. By the time I swam that hundred feet everyone had already gone in the water to see it.”
Matroci’s luck did not help us on the Magruder. While the crew was setting up the airlift, the device’s big green pipe came unclamped; several divers and a hacksaw were needed to fix it. When the airlift finally juddered into action, a little past one o’clock, the investors donned heavy red gloves, took up dustpans in each hand, and sifted the sand with a rapt sense of purpose. Over the next three hours, as the runoff from the sluice made a plume in the crystalline seas, the investors salvaged a shelf’s worth of gorgeous seashells, a few black bomb fragments that still smelled of cordite, and two terrified octopuses. The only close call, a spot of green about the size of a pinhead, turned out to be a hacksawed bit of airlift. “Don’t get me wrong, a huge honker would be great,” the Disney developer said near the end. “But I just want something small, something you can tell the story of.”