UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-1496

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

TONY LYNN BAILEY,

Claimant - Appellant,

v.

CURRENCY, U.S., $147,900.00,

Defendant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. James A. Beaty, Jr.,

Chief District Judge. (1:06-cv-00197-JAB-PTS)

Argued: September 22, 2011 Decided: October 14, 2011

Before MOTZ, GREGORY, and SHEDD, Circuit Judges.

Affirmed in part, reversed in part, and remanded by unpublished 

per curiam opinion.

ARGUED: John Carl Vermitsky, MORROW PORTER VERMITSKY & FOWLER, 

PLLC, Winston-Salem, North Carolina, for Appellant. Lynne P. 

Klauer, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North 

Carolina, for Appellee. ON BRIEF: Benjamin D. Porter, MORROW 

ALEXANDER PORTER & WHITLEY, PLLC, Winston-Salem, North Carolina, 

for Appellant. Anna Mills Wagoner, United States Attorney, 

Greensboro, North Carolina, for Appellee.
2

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

In this civil asset forfeiture action, police officers

seized $147,900.00 in United States Currency from Tony Lynn 

Bailey’s property while executing a search for controlled 

substances. The district court granted the Government’s motion 

for summary judgment, awarding it all of the seized currency. 

We affirm in part, vacate in part, and remand for further 

proceedings consistent with this opinion.

I.

On December 12, 2005, officers with the Davidson 

County Sheriff’s Office, following up on tips from the 

community, executed a controlled buy of prescription drugs from 

Bailey at his home. Under the supervision of two detectives, a 

confidential informant, who stated that he had previously 

obtained prescription drugs from Bailey, went to Bailey’s home

and returned with hydrocodone pills from Bailey.

Detective Jeff Jones then applied for, received, and 

executed a search warrant for Bailey’s home. Under the sink in 

the bathroom, the officers found approximately fifteen pills 

that were not in a prescription bottle, several items matching 

the description of the stolen property that the informant 

purportedly had given Bailey in exchange for prescription pills, 

and eight firearms. In a dresser drawer, the officers found 
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$9,000. Finally, in an outbuilding, the officers found seven 

more firearms and fourteen rubber-banded stacks of $100 bills in 

a large green safe.

Following the search, Detective Jones interviewed 

Bailey after he waived his Miranda rights. Bailey signed a 

statement attesting that he sold prescription pills to pay for 

his bills and medication, but that he had sold “less than 500 

pain/nerve pills.” Further, he stated that, although 

unemployed, he performed odd jobs to make money. Bailey 

maintained that he had inherited the $100 bills found in the 

green safe in the outbuilding from his father in “1993 or 1994.” 

Detective Jones observed that some of those $100 bills were 

dated from the late 1990s and 2000 and, therefore, the Detective 

suspected Bailey had lied about the source of the currency found 

in the safe. As a result, Detective Jones confiscated all of 

the currency, i.e., that found in the safe and the $9,000 found 

in Bailey’s dresser drawer.

A count of the seized currency yielded a total of 

$147,900. An official at the Federal Reserve Bank of New York 

subsequently reviewed the currency and concluded that the age of 

the bills varied widely, with some of the bills dating from as 

early as the 1950s. More than half of the bills, however, were 

released into general circulation after the death of Bailey’s 

father on May 2, 1994.
5

The 2005 search was not Bailey’s first run-in with law 

enforcement. In 2001, officers with the Davidson County 

Sheriff’s Office executed a controlled buy of prescription drugs 

from Bailey at the same home. In a subsequent search of his 

home and outbuildings, the officers seized ten firearms, twentyfive units of Alprazolam, 2,128 grams of marijuana, boxes of 

plastic bags, a set of digital scales, and $33,100. Bailey was 

arrested and charged with various state narcotics offenses, but 

he was not convicted of any crime.1

On February 28, 2006, the Government filed this civil 

forfeiture action pursuant to 21 U.S.C. § 881(a)(6) and 18 

U.S.C. § 981(a)(1)(C) and sought an in rem arrest warrant for 

all of the currency found during the December 12, 2005 search of 

Bailey’s home and outbuildings. After the district court 

initially denied the warrant, the Government filed an amended 

complaint and arrest warrant, which the court granted on 

November 16, 2006. Bailey filed a claim to the currency. After 

discovery, Bailey and the Government each moved for summary 

judgment. On March 31, 2009, the district court granted the 

 1 The Government filed a forfeiture action with respect to 

the $33,100 seized and settled the action on terms favorable to 

Bailey: $20,051.50 to Baptist Hospital for Bailey’s outstanding 

medical bills; $5,694.00 to Bailey’s girlfriend who claimed that 

those funds represented her tax refunds; $395.00 to the United 

States in costs related to the action; and $6,959.50 back to 

Bailey.
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Government’s motion and denied Bailey’s. Most relevant to this 

appeal, the court held that, as a matter of law, the Government 

had met its burden of showing by a preponderance of the evidence 

that all of the currency in question was subject to forfeiture. 

Bailey timely noted this appeal.

II.

Federal law provides that currency traceable to the 

exchange of controlled substances is subject to forfeiture. 18 

U.S.C. § 981(a)(1)(C); 21 U.S.C. § 881(a)(6). In 2000, Congress 

passed the Civil Asset Forfeiture Reform Act of 2000, Pub. L. 

No. 106-185, 114 Stat. 202 (“CAFRA”), which modified the burdens 

of proof in civil forfeiture proceedings. Prior to CAFRA, the 

Government had the initial burden of demonstrating probable 

cause that property was subject to forfeiture. See United 

States v. Thomas, 913 F.2d 1111, 1114 (4th Cir. 1990). The 

burden then shifted to the claimant to establish, by a 

preponderance of the evidence, that the property at issue was 

not acquired in violation of the law or linked to unlawful 

activity. Id. CAFRA eliminated this burden-shifting framework; 

it put the burden solely on the Government and raised the 

quantum of proof to a preponderance of the evidence. 18 U.S.C. 

§ 983(c)(1) (“[T]he burden of proof is on the Government to 
7

establish, by a preponderance of the evidence, that the property 

is subject to forfeiture.”).

In a forfeiture proceeding, we review the district 

court’s factual findings for clear error, but review de novo the 

legal determination of whether those facts render the property 

at issue subject to forfeiture. See United States v. $84,615 in 

U.S. Currency, 379 F.3d 496, 501 (8th Cir. 2004). In 

determining whether the Government has met its burden, courts 

should not view each piece of evidence in isolation, but rather 

“consider the totality of the evidence as a whole and in the 

appropriate context.” United States v. Funds in the Amount of 

$30,670.00, 403 F.3d 448, 469 (7th Cir. 2005).

A district court may grant summary judgment only “if 

the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter 

of law.” Fed. R. Civ. P. 56(a). A court should not grant 

summary judgment “if the evidence is such that a reasonable jury 

could return a verdict for the nonmoving party.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this 

determination, the court “must view the evidence presented 

through the prism of the substantive evidentiary standard.” Id. 

at 254.
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III.

Bailey initially challenges the Government’s evidence 

as insufficient to connect the seized currency with his alleged 

drug activities. The district court disagreed, and so do we. 

First, Bailey has a history of involvement with 

illegal drugs.2

 The Government presented uncontroverted evidence 

that drugs were found on Bailey’s property in both 2001 and 

2005, providing a sound basis for the district court’s finding

that the Government had presented “significant evidence of 

[Bailey’s] substantial involvement in the sale of controlled 

substances for several years.” United States v. $147,900.00 in 

U.S. Currency, 2009 WL 903356, Civ. No. 06-197 (M.D.N.C. Mar. 

31, 2009).

 2 To demonstrate Bailey’s involvement with drugs, the 

Government presented hearsay evidence, primarily regarding his 

involvement prior to 2005. Bailey did not object to the hearsay 

in the district court. Indeed, he does not clearly object to 

the admissibility of that evidence before us. Instead, he 

argues generally that the Government offers “little more than 

rank hearsay . . . to support [its] allegation that the Claimant 

engaged in drug trafficking for a long period of time;” thus,

his argument appears to dispute the sufficiency, rather than the 

admissibility, of the Government’s evidence. Accordingly, we 

assess the admissibility of the hearsay evidence only for plain 

error. Fed. R. Evid. 103(a), (d). Given that courts routinely 

permitted the Government to rely on hearsay evidence in 

forfeiture proceedings prior to CAFRA, and only one appellate 

court has explicitly recognized that hearsay evidence is no 

longer admissible following CAFRA, see United States v. 

$92,203.00 in U.S. Currency, 537 F.3d 504, 510 (5th Cir. 2008); 

but see United States v. $291,828.00 in U.S. Currency, 536 F.3d 

1234, 1237 (11th Cir. 2008), we cannot hold admission of the 

evidence to be plain error.
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Furthermore, Bailey’s possession of large sums of cash

at the same time as his engagement in drug activity provides 

“strong evidence that the cash is connected with drug activity.” 

$84,615 in U.S. Currency, 379 F.3d at 501-02; see also United 

States v. $252,300.00 in U.S. Currency, 484 F.3d 1271, 1275 

(10th Cir. 2007) (“A large amount of currency, while not alone 

sufficient to establish a connection to a drug transaction, is 

‘strong evidence’ of such a connection.” (quoting United States 

v. $149,442.43 in U.S. Currency, 965 F.2d 868, 877 (10th Cir. 

1992)).

Finally, Bailey has no reported income or work history 

that could explain the large amount of currency in his 

possession. See United States v. $174,206.00, 320 F.3d 658, 662 

(6th Cir. 2003) (holding that “evidence of legitimate income 

that is insufficient to explain the large amount of property 

seized” satisfies the preponderance of the evidence standard).

Taken together, this is sufficient, albeit not 

overwhelming, evidence that some of the currency seized from 

Bailey’s property is connected to his drug activities.

IV.

The district court erred, however, in viewing the

above evidence as sufficient to grant summary judgment to the 

Government as to all of the currency found on Bailey’s property.
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A.

Police seized the vast majority of the currency here -

- $138,900 in $100 bills -- from a green safe in Bailey’s 

outbuilding. In deposition, Bailey swore that he inherited all

of this currency from his father and had buried it in his 

backyard in glass jars. He stated that he dug up the jars only 

occasionally and had never exchanged the currency for more 

recently issued currency. Under most circumstances, such 

testimony of a legitimate source would suffice to create a 

genuine dispute of material fact as to the entire sum.

In this case, however, undisputed record evidence 

requires rejection of Bailey’s testimony as to a legitimate 

source for a portion of the currency. See Scott v. Harris, 550 

U.S. 372, 380 (2007). More than half of the seized currency was 

not in circulation at the time of the death of Bailey’s father

on May 2, 1994. Thus, because this “new” currency plainly 

cannot be part of an inheritance from his father, Bailey’s 

testimony about his inheritance cannot create a genuine dispute 

as to the source of this “new” currency. And, given that in 

deposition, Bailey swore that the currency in the safe consisted 

exclusively of an inheritance from his father, he cannot now 

contend that this “new” currency came from any other legitimate 

source. Cf. Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th 

Cir. 1984). Moreover, that Bailey plainly lied about the source 
11

of this “new” currency constitutes additional probative evidence 

that the currency is connected to criminal behavior. See United 

States v. $67,220.00 in U.S. Currency, 957 F.2d 280, 286 (6th 

Cir. 1992). Accordingly, with respect to this “new” currency,

we affirm the district court’s grant of summary judgment to the 

Government.

B.

The currency found in the safe that was released into 

general circulation before the death of Bailey’s father on May 

2, 1994 presents a different question. No record evidence 

requires rejection of the possibility that Bailey inherited this

“old” currency from his father.3

To the contrary, the record lends some support to 

Bailey’s inheritance claim. First, Bailey’s former girlfriend, 

Sherry Richie, testified under oath that she accompanied Bailey 

when he retrieved the inheritance money from his father’s 

property and that Bailey then kept the money buried in glass 

jars in his backyard. Second, the age of the “old” currency

 3 At oral argument and in his brief, counsel for Bailey 

stated that $54,600 of the seized currency consisted of bills 

that pre-dated 1994. The Government has not disputed this 

figure. But the record contains no factual finding on this 

point. On remand, we leave it to the district court to

determine the precise amount of the “old” currency, i.e, 

currency seized from Bailey’s safe that was released into 

circulation prior to May 2, 1994.
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suggests it could be an inheritance. According to the 

Government’s own expert from the Federal Reserve Bank, the 

average lifespan of a $100 bill is eighty-nine months (or seven

years and five months). Of course, we recognize the difficulty 

in deriving significance from a mathematical average without

further information as to context, but a fact-finder could find 

this testimony relevant and persuasive. With an average 

lifespan of eighty-nine months, bills released into circulation 

prior to May 2, 1994 would not normally be in circulation at the 

time of the Government’s seizure of the currency in 2005. And 

yet, some of the seized bills are several decades old. Bailey’s 

purported practice of keeping his inheritance buried underground 

in jars and out of the bank could explain the age of this “old” 

currency.

Of course, a fact-finder could determine that Bailey 

and his ex-girlfriend lied and the age of the “old” currency is 

immaterial. But these are questions to be determined by a factfinder. Accordingly, we reverse the district court’s grant of 

summary judgment to the Government with respect to the 

forfeiture of the “old” currency found in the safe.

C.

Bailey has also established a genuine dispute of

material fact as to the source of the $9,000 that the police 
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officers found in his dresser drawer. In deposition, Bailey 

testified that this money derived from a 1966 Mustang, which he 

bought at an auction, fixed up, and then sold to a man named 

Tony.

The district court rejected this testimony as 

uncorroborated. But corroboration is not necessary to establish 

a genuine dispute of material fact. Cf. Berry v. Chicago 

Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010) (holding that 

uncorroborated testimony from a non-movant at summary judgment 

can be evidence of disputed material facts if the testimony is 

based on personal knowledge or firsthand experience); see also

Liberty Lobby, 477 U.S. at 255 (noting that juries, not judges, 

must weigh evidence and determine the credibility of testimony).

Bailey’s testimony about this transaction was specific 

and consistent with his other statements that he occasionally 

purchased and sold cars to make money. Moreover, the $9,000, 

which was kept separate and apart from the currency in the safe 

in the outbuilding, is not an amount that on its own would 

suggest linkage to drug activity. See United States v. 

$191,910.00 in U.S. Currency, 16 F.3d 1051, 1072 (9th Cir. 

1994). Therefore, the district court erred in granting summary 

judgment to the Government as to this $9,000.
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V.

For the foregoing reasons, we affirm the judgment of 

the district court with respect to the “new” currency found in 

the safe, but reverse the judgment of the district court and 

remand for further proceedings to determine whether the 

following currency is subject to forfeiture: (1) the “old” 

currency found in the safe, i.e., currency that was released 

into general circulation prior to May 2, 1994; and (2) the 

$9,000 found in Bailey’s dresser drawer.4

AFFIRMED IN PART, 

REVERSED IN PART, 

AND REMANDED

 4 The district court noted that the Government co-mingled 

the bills found in the dresser drawer with the bills found in 

the safe. If the Government is unable now to determine which 

bills were found in the safe, on remand, the district court 

should assume that all of the “old” bills were found in the safe 

and the $9,000 in the dresser drawer consisted of “new” bills.