by Leah Nelson, Alabama Appleseed Researcher
It was a “harebrained theory” from the start. That’s what a former Houston County assistant district attorney with knowledge of the case against James Vibbert says, anyway.
“[B]ut we didn’t dismiss cases in the DA’s office when Doug Valeska was there. You weren’t allowed to, unless he wanted to dismiss the case,” the former insider said. “‘Try it and lose,’ was pretty much what we were told.”
So that’s what they did. And Vibbert, a small business owner who faced criminal charges and the attempted civil forfeiture of more than $25,000 that he needed to keep his business running, paid the price.
James “Jamey” Vibbert is the unlikely protagonist of an object lesson about the way civil asset forfeiture can be abused by ambitious law enforcement agents and unscrupulous prosecutors. Past president of the Dothan/Houston County Rotary Club, former member of the board of directors and three-time “Ambassador of the Year” for the Dothan Area Chamber of Commerce, a man whose Facebook “likes” include “Conservatives Against a Liberal Agenda,” he personifies what many in Alabama’s fiercely conservative Wiregrass region might consider an ideal. He’s a small business owner and entrepreneur who got his start in healthcare systems and payroll solutions before turning to the sale of high-end imported cars; a Huntsville, Ala. native and Crimson Tide fan with two adult children and a young daughter he dotes on.
Sitting in the back office of Bavarian Imports, the dealership he opened after fallout from his disastrous encounter with Houston County’s civil asset forfeiture machine forced him to close his previous shop, Vibbert struggles to find words to describe his experience.
“It just tarnished. It just knocked it off,” he says. “If it had even been a little cloudy, something that I may have done, that I crossed the line a little bit, maybe I deserved it. No. I didn’t cross the line a single bit. I didn’t do the first thing that was wrong, not even close. That’s what’s so hard about this, it was nothing.”
But it was also everything.
It all started in 2015 when a young man with cash to spare started buying cars from Vibbert’s dealership, CSI Auto Sales. The buyer didn’t have a license, but car dealers often sell cars to individuals who cannot legally drive them – for instance, disabled persons who buy cars that will be driven by others, or elderly individuals who have let their licenses lapse and are buying cars for children or grandchildren.
The first time he bought a car from Vibbert, the buyer said he wanted the title in the name of a person he said was his girlfriend’s mother. Vibbert gave him the paperwork. He also advised the buyer to find a trustworthy lienholder to maintain financial control of any vehicle he bought but didn’t control the title to – that way, if he and his girlfriend got in a fight, the lienholder could stop her from making off with the car. The buyer thanked Vibbert, and did just that.
Not long after that, the buyer was arrested for an alleged drug crime. Alleging they had been purchased with drug money, Lt. Demetrius Bogan of the Alabama Law Enforcement Agency apparently looked into having the cars forfeited and learned that the titles were not in the buyer’s name and the cars had third-party lienholders.
In 2004, Houston County District Attorney Doug Valeska sent a memo to all law enforcement personnel under his jurisdiction, telling them that his office expected 20 percent of the proceeds of any item seized via civil asset forfeiture, a legal process by which property believed to be connected to a crime can be “prosecuted” and become the property of the state. The memo, which Alabama Appleseed obtained on Jan. 11 through an open records request asking for all documentation about the Houston and Henry County District Attorney’s civil asset forfeiture policy, states that law enforcement agencies are responsible for paying off any liens on forfeited vehicles, and warning them to look into liens before seeking forfeiture.
When Bogan checked the title on the two vehicles he seized from Vibbert’s buyer, he discovered that it would cost his employer as much as the cars were worth – about $25,000 – to have them forfeited. Rather than let things go, he began to investigate Vibbert. The prosecutor struggled to charge him: as he told the Dothan Eagle, he “kind of had to do some serious research in the statutes to figure out exactly how it violated the law. … It’s the first time that I know of we’ve ever charged anybody under these provisions.”
The prosecutor likened Vibbert’s alleged crime to money laundering. “The vehicles were being bought with drug money, and [Vibbert] knew they were being bought with drug money,” he told the Eagle. “He’s falsifying titles to protect a drug dealer’s vehicles from government seizure.”
But Vibbert didn’t know. In his years as a car salesman, he’s had customers pay him in cash and title the car to third parties for any number of legitimate reasons – as an example, he cites a Mobile-based hairdresser who used the cash he received in tips to buy a flashy car for his mother. He also makes a practice of advising young people buying cars for their significant others to add lienholders, to protect the buyer from losing their property due to a bad breakup. All kinds of people buy high-end used automobiles, and Vibbert has learned not to judge or make assumptions without good cause. He just warns his buyers to be careful.
Unfortunately, the system that prosecuted him hadn’t learned that lesson – least of all former Houston County District Attorney Doug Valeska, who earned a bar complaint from a former Alabama Supreme Court justice and a national reputation for abusing his power before retiring in 2016.
According to a former prosecutor who worked in his office, Valeska refused to allow dismissal of Vibbert’s case even when it became clear that the charges were baseless, and the forfeiture proceedings unwinnable.
Vibbert’s first clue that something was amiss came when he noticed that about $25,000 was missing from his bank account. He called his bank, which said it would look into what had happened and get back to him. Two days later, Bogan showed up at his dealership and demanded to talk with him.
Vibbert was at a car show in Tallahassee when his wife Kayla called and put Bogan on the phone. Vibbert recalls the conversation vividly.
“He said ‘I’ve got some advice for you,’ he says. ‘You better leave right there, and you better come back to Alabama, and you better hope that you don’t get pulled over by the police there, ‘cause I’m gonna let you set in jail for 10 days till I come and get you.’ And he says, ‘Oh by the way,’ he says, ‘I’m the one that took that money out of your account.”
Bogan had gained control of the money under Alabama’s civil asset forfeiture laws, which allow individual police officers to seize cash and other items that they believe are connected to criminal activity.
Most commonly, cash is seized when it’s found in a vehicle or home together with drugs or other alleged evidence of criminal activity. Forfeiture is then sought in civil court, where Alabama law requires prosecutors to prove to a judge’s “reasonable satisfaction” – a nebulous standard that is approximately equivalent to “more likely than not” – that it was the fruits of, or connected to, a crime.
Unusually, Vibbert’s was taken from his bank account, because Bogan and the District Attorney’s office believed it might be connected to drug dealing in some fashion.
Ultimately, a judge disagreed – but not before Vibbert lost his business, and, in many ways, his sense of himself as a pillar of his small, conservative, close-knit Wiregrass community.
There was a flaw in the first indictment against Vibbert, so the judge threw it out the day the trial was set to begin. The District Attorney’s office charged Vibbert again, arrested him again, and insisted on proceeding to trial.
In the meantime, Vibbert hired attorneys and set about attempting to get his money back. It couldn’t happen fast enough. He had intended to use the $25,000 the state seized to purchase new inventory, and now that couldn’t happen. Lenders suspended lines of credit. People stopped buying from him; some even backed out of partially completed transactions after the Dothan Eagle featured a story describing the charges against him. Vibbert’s payroll solutions and workers compensation company, which predated his car dealership, lost about 50 percent of its contracts because no one wanted to trust their finances to an alleged money launderer. Overall, he estimates the ordeal set him back about $300,000 in lost business and expenses.
The criminal trial was over almost before it started. Vibbert’s lawyers took the unusual step of requesting a bench trial, meaning the judge decided the case instead of a jury. The prosecutor’s case fell apart: at one point, the judge interrupted to observe that he himself had recently purchased a car, titled it to his son, and had the title sent to his own home address rather than his son’s – facts similar to those on which the charges against Vibbert were based. “Is that falsifying a title?” the judge asked the prosecutor.
“Possibly,” came the reply. “I would need a little more information.”
In the end, the judge ruled in Vibbert’s favor. In addition to finding him not guilty of all the charges against him, the judge made a clear statement about what he thought of the forfeiture proceedings.
“The Court is not willing to extend forfeiture laws to businesses who are not involved in the drug trade. Otherwise, you are going to draw in car dealers, rental car companies, etc. There would have to be more, a pattern of [sic] practice for the car dealer bending the law to assist drug dealers. This is but one example. But one example. And I am not sure that Mr. Vibbert fits that,” he said.
He warned Vibbert not to sell that particular buyer any more cars, and sent him home.
Off the record, the prosecutor apologized to Vibbert and expressed relief that the proceeding was over. That was January 2016.
Vibbert started to put his life back together. Based on the judge’s words, he was sure his money would be returned to him any day, but months passed, and he received no check. On March 25, 2016, his lawyer sent a letter to Valeska. He observed that other individuals associated with the case – including the buyer, who in addition to allegedly participating in a title fraud scheme was also allegedly in possession of a large quantity of methamphetamine when Bogan stopped him – were not charged with crimes, while “the State and Agent Bogan chose to pursue the rare and speculative charges against Vibbert.” He noted that Vibbert’s bond – a total of $50,000 over the course of two arrests – was shockingly high given the charges and the fact that Vibbert had no prior criminal history.
“It is my opinion that the motivation for pursuing the charges and the civil forfeiture against Vibbert was unfortunately a desire to take his money,” he wrote. “I believe it is now clear that the State has a duty to cease this proceeding.”
Valeska disagreed, and took several more months and a judge’s order to force the state to return Vibbert’s money. He lost about a third of it to attorney fees, and used the rest to reinvest in his foundering businesses.
Things are getting better, but they’re still bad. “It’s very difficult for me today to call on companies in this area and get them to do business with me,” Vibbert says. “My competitors, the first thing they’re going to say is, ‘Let me pull up this thing on the internet here. He launders money.’”
“The internet,” he says, “will never go away.”
Though he’s back on his feet, Vibbert’s life was permanently changed by the experience. An extroverted, highly social man his whole life, he’s withdrawn to a back office to avoid problems with customers who still associate his face with alleged criminal activity. He and his family rarely attend church anymore, and he’s withdrawn from many neighborhood and social activities. He would like to have the record of his arrest expunged, but he dreads going to the local jail to get fingerprinted (a required part of the expungement process), fearful that someone will see him there and assume he’s been arrested again.
“It’s still a nightmare. It hasn’t ended. You would think that it would end, but the problem you have is, you’ve got people who just don’t know the truth, and they assume, ‘ok, it’s this.’ And I worked so hard to build what I had,” Vibbert says. “And the thing is, how they can do that, and get away with it? And they drug me through it. When they finally found out the truth, they didn’t stop. They didn’t stop! It was just like, ‘We don’t care.’”