he had not filed state or federal tax returns for the past 10 years.
Finally, in answers to interrogatories in this litigation, McDermoth stated that he has no accounts in any bank or credit union.
This evidence suggests that McDermoth had no legitimate, legal source of income prior to June 1995 from which he could have saved nearly $ 9,000 in cash.
All of this evidence, when considered in the aggregate, sufficiently demonstrates a nexus between the money and the exchange of a controlled substance.
Although the Second Circuit has declined to hold that possession of large amounts of cash is per se evidence of involvement in illegal drug-related activity, $ 31,990, 982 F.2d at 854, it has nevertheless noted that "a person who carries such amounts of cash is 'either inordinately carefree with his money' or is 'involved in illegal activity'. . .," id. (quoting $ 37,780, 920 F.2d at 163), and that the possession of a large amount of cash raises an inference of illegal -- although not necessarily drug-related -- activity. $ 31,990, 982 F.2d at 854. Here, the inference of illegal activity raised by McDermoth's possession of a large amount of cash must be considered along with the other evidence, including his prior and subsequent arrests and convictions for the drug-related offenses. Similarly, although "profile" factors, such as the cash purchase of airline tickets to New York City, are of little value when considered in isolation, they are probative when viewed along with other evidence of narcotics activity. See $ 31,990, 982 F.2d at 855. In this case, the cash purchase of a tickets to New York City must be considered along with McDermoth's other criminal activity and all the other factors suggesting a nexus between the money and drug transactions.
When all these factors are viewed together, there is ample basis upon which to conclude that the $ 8,880 is connected to the sale of controlled substances, and that the Government has therefore established probable cause for the seizure. Cf. $ 37,780, 920 F.2d at 163-164 (noting that evidence of claimant's extensive involvement in drug activities was a relevant factor in determining probable cause).
Because the Government has satisfied its burden of establishing probable cause, " 19 U.S.C. § 1615 places on McDermoth 'the ultimate burden of proving that the factual predicates for forfeiture have not been met.'" United States v. One Parcel of Property Located at 15 Black Ledge Drive, 897 F.2d 97, 101 (2d Cir. 1990) (quoting Banco Cafetero Panama, 797 F.2d at 1160). McDermoth has failed to carry this burden.
McDermoth has offered no evidence to rebut the finding of probable cause. He simply asserts in an affidavit that the money was "life savings," with no "connection with drugs." However, he offers no proof to substantiate this conclusory assertion.
On a motion for summary judgment, the party against whom summary judgment is being sought must do more than rely on conclusory assertions. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985) (conclusory allegations of discrimination are insufficient to satisfy Rule 56(e)). Moreover, where a non-moving party bears the burden of proof at trial, "Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim." Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991). Here, apart from McDermoth's conclusory statement, there is no evidence to support his claim that the money is not substantially related to the sale of a controlled substance.
For the reasons set forth above, the Government's motion for summary judgment is granted. The claimant's motion to suppress is denied as moot and claimant's motion for summary judgment is denied.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT JUDGE
Dated: Rochester, New York
November 15, 1996