By Michael E. Miller
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Emeralds were big business for the Fishers. Nearly 30 years after first excavating the Atocha site, Motivation claimed emeralds were still hidden below the waves. Every year, the outfit splashed promotional material with declarations that 70 pounds of the precious stones were still missing from the ship. To help fund the search, they solicited investors.
The treasure-hunting royalty dug in for a legal fight against the upstarts, but the court battle was never supposed to be about the emeralds' value. An admiralty claim is only supposed to determine who owns the find — whether said find is priceless jewels or worthless junk. But the selling price of Miscovich's find became the hot topic in court.
The legal battle became Key West's story of the decade, with fact and fiction wrestling for the spotlight.
First, the Fishers claimed that the 1622 hurricane that bashed the Atocha could have pried a barrel of emeralds loose from the ship, carried the cargo 30 miles northwest, and then smashed it near the Miscovich site, even though the actual coordinates were still a secret. Because the court had granted Mel Fisher and his heirs exclusive claims on the Atocha treasure, Motivation argued the emeralds were theirs. (Through their attorney, Hugh Morgan, the Fishers declined to comment for this article.) They wanted their emerald expert, Marcial, to inspect the material to ascertain whether it could have been from the ship.
But their claim was shoddy. Experts countered that debris from the Atocha had spilled in the opposite direction — southwest, not northwest.
In July 2012, the Fishers pulled out a new theory: Miscovich and Elchlepp had conspired with a former Fisher diver to steal emeralds from the Atocha site and later plant the stones in the new location, they said. Once again, they petitioned the court to have Marcial inspect the stones.
As the Fishers scrambled to put together a plausible theory for their ownership of the emeralds, Miscovich's own story was taking on water. A television crew from 60 Minutes sent emerald samples to European labs for independent appraisal. Bad news: The European lab found a possible epoxy, suggesting the emeralds had been treated in modern times.
That stunned even the Miscoviches. "That was a big setback for me," Scott Miscovich admits. "Everyone is thinking Spanish, and we're doing research on ships." But the epoxy suggested there was no way the emeralds could have come from a colonial-era ship. "The question is: When were they lost in the ocean? [The epoxy] changes your timeline probably to a more contemporary time."
As Miscovich would tell the court, tell 60 Minutes, and maintains to this day — he never claimed to know where the emeralds came from. He only found them.
"None of us were there when the find occurred except Jay and Steve," Scott says. "They were put on the rack, for weeks and weeks, and challenged on different points: how, when, where. That's all we had to rely on. And they were very consistent."
In August 2012, Marcial was allowed to examine the rocks in a Key West law office. At the end of the appraisal, Marcial announced the stones were not from the Atocha.
"I was shocked," Miscovich recalls. "I was absolutely sure they were going to say they were from the Atocha after everything we had been through."
Marcial valued the entire lot at less than $50,000. He suggested the stones couldn't have been underwater for more than a few months.
"In all my 56 years in the emerald business, I have not seen emeralds of such poor quality as the rough alluvial emerald beryl material present," the jeweler wrote in his official appraisal. "These largest groupings of rough would be more appropriately described by the Colombian term 'barro' which roughly translates as 'not worth sweeping off the floor.'"
The Fishers let go of their admiralty claim on the stones — but filed a motion for sanctions against Miscovich and Elchlepp. They accused the men of planting discount-bin rocks on the bottom of the ocean so they could con money from investors. This summer, both sides will be back in Judge Lawrence King's court for a sanctions hearing. If Motivation Inc. can prove Miscovich committed fraud, he could have to pay the company's legal fees.
Miscovich's lawyers shot back. Motivation was the fraud, they said, luring investors to the Atocha with the promise of missing emeralds — when in fact, emeralds were never listed on the ship's manifest. An expert questioned whether 70 pounds of emeralds could even have come from the Spanish emerald mines in the New World in 1622.
By then, however, the treasure-hunting community had sided with its first family. Online, users of treasure messageboards relentlessly taunted the landlocked Miscovich, saying he must have bought a bag of rocks from the Tucson gem show and dumped them overboard or teasing him that other boats were out at his unprotected site, scooping the last green rocks out of the sand.
The judge's ruling on the admiralty claim came on January 25, a Friday afternoon. Because there was no shipwreck on the emerald site, "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," King's judgment stated. "The Court cannot simply accept the un-contradicted testimony of Jay and Steve that they followed a treasure map to the site, dove the floor, and found the emeralds."