FINDINGS OF FACT AND CONCLUSIONS OF LAW

The parties herein have submitted cross-motions for summary judgment. Doc. ## 34, 48. Claimant moves for the return of $49,790 in United States currency (“the currency” or “the currency at issue”), Doc. # 34, and the government cross-moves for forfeiture, arguing that the currency is substantially connected to drug trafficking. Doc. # 48.

The court held a hearing on the parties’ motions on November 4, 2010, during which the parties mutually agreed to convert their motions for summary judgment into final submissions for adjudication: a bench trial on the papers. In so doing, the parties acknowledged that all of the facts relevant to adjudication are contained in their respective submissions and requested that the court make any credibility determinations or weigh evidence as necessary to rule. This, of course, the court may do, Starsky v. Williams, 512 F.2d 109, 112-13 (9th Cir.1975), as all relevant facts are contained in written record, Chevron USA, Inc. v. Cayetano, 224 F.3d 1030 , 1038-39 n. 6 (9th Cir.2000) (quoting TransWorld Airlines, Inc. v. American Coupon Exchange, Inc., 913 F.2d 676 (9th Cir.1990)).

Presumably, the Ninth Circuit would review the court’s findings under the “clearly erroneous” standard of FRCP 52(a). Starsky, 512 F.2d at 111 . The court therefore treats the parties’ motions as submissions for trial on the written record under FRCP 52.

The court now makes its findings of fact and conclusions of law pursuant to FRCP 52(a)(1):

FINDINGS OF FACT

1. On October 17, 2007, United States Drug Enforcement Administration (“DEA”) agents seized the currency at issue at a Federal Express (“FedEx”) facility in South San Francisco, California.

2. After noticing a large white parcel, which had a handwritten airbill for priority overnight delivery and for which the sender had paid $62.93 in cash, DEA Task Force Agent Martin D. Mahon brought a certified narcotics detection dog, called Dugan, to sniff the area in which the parcel had been placed.

3. Dugan alerted to the parcel, which bore tracking number 8624 4882 5218, listed “Kevin Hope” of 1725 N. 54th Street, Philadelphia, (215) 207-3528, as sender, and “Deborah Barnes” of 350 Sweeney Street, San Francisco, California, (415) 902-3597, as recipient.

4. In truth, Brett Townsend — not “Kevin Hope” — sent the package. See CL-Forfeitability 5(E)(ii).

5. Dugan’s alert indicated that the odor of illegal drugs was emanating from that parcel.

6. Agent Mahon obtained a state search warrant for the parcel and found a black notebook case inside. Inside that notebook case were two vacuum-sealed plastic bags containing the currency at issue, which was comprised of various denominations and bundled with rubber bands.

7. The DEA agents then secured a state search warrant for the parcel’s purported destination, 350 Sweeney Street, San Francisco, California. The warrant was executed in the presence of claimant and his wife.

8. The next day, Agent Mahon spoke to claimant on the telephone, at which point claimant represented that he owned the currency.

9. On March 27, 2008, the government filed a complaint for forfeiture under 21 USC 881(a)(6), alleging that the currency was seized as drug proceeds or as money used to facilitate a drug transaction.

10. Claimant subsequently filed a verified claim alleging ownership of the currency.

11. The court, before turning to its conclusions of law, makes the following credibility determinations:

CONCLUSIONS OF LAW — EXPERT TESTIMONY

1. An adequate Daubert analysis of every challenged expert opinion seems prudent in fulfilling the court’s obligation to ensure actual conformance with FRE 702 as interpreted by the Supreme Court in Daubert v. Merrell Dow Pharm., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 , 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999).

2. A proposed expert witness must qualify as an expert “by knowledge, skill, experience, training, or education.” FRE 702.

3. Once a court finds that the proposed witness qualifies as an expert, it must determine whether expert testimony is both relevant and reliable, with a “basis in the knowledge and experience of [the relevant] discipline.” Kumho Tire, 526 U.S. at 147, 149 , 119 S.Ct. 1167 (citing Daubert, 509 U.S. at 592 , 113 S.Ct. 2786 ). This progression establishes a standard of evidentiary reliability, Daubert, 509 U.S. at 590 , 113 S.Ct. 2786 , intended to ensure that the analysis “undergirding the expert’s testimony falls within the range of accepted standards governing how [experts in the relevant field] conduct their research and reach their conclusions.” Daubert v. Merrell Dow Pharm., 43 F.3d 1311 , 1317 (9th Cir.1995) (on remand) (“Daubert II ”). The court’s task “is to analyze not what the experts say, but what basis they have for saying it.” Id. at 1316. Accordingly, the court focuses on the “reliability of the methodology.” Id. at 1319 n. 11.

4. The government tenders Dr. Furton as an expert on narcotics-detection dogs. See Doc. # 49.

5. The government also tenders Agent Mahon as an expert on narcotics detection dogs. See Doc. ## 33, 40.

6. Claimant tenders Dr. Woodford as an expert on narcotics detection dogs. See Doc. # 57.

CONCLUSIONS OF LAW — FORFEITA-BILITY

1. The Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), 18 USC § 983 , governs forfeiture proceedings commenced after its effective date — August 23, 2000.

2. CAFRA places the burden of proof on the government to establish forfeiture by a preponderance of the evidence. United States v. $80,180.00 in U.S. Currency, 303 F.3d 1182, 1184 (9th Cir.2002).

3. A forfeiture claim brought under 21 USC § 881 (a)(6) requires the government to show, by a preponderance of the evidence, a “substantial connection” between the currency at issue and the alleged illegal drug activity. See, for example, United States v. One 1986 Ford Pickup, 56 F.3d 1181 , 1187 (9th Cir.1995); United States v. $32,000 in United States Currency, 2007 U.S. Dist. LEXIS 38147 , *5 (D.Ariz.).

4. The determination whether the government has met its burden of proof is based on the aggregate of the facts, including circumstantial evidence. United States v. Currency, U.S. $42,500.00, 283 F.3d 977, 980 (9th Cir.2002).

5. The following facts surrounding the seizure of the currency, in the aggregate, lead the court to conclude by a preponderance of the evidence that the currency is substantially connected to illegal drug activity:

6. Based on the aggregate facts of this case, the court finds, by a preponderance of the evidence, that the currency at issue is substantially connected to illegal drug trafficking. See Currency, U.S. $42,500, 283 F.3d at 977 ; $22,474 in U.S. Currency, 246 F.3d at 1212 .

7. As a result, the court must address whether forfeiture may be prevented by claimant’s innocent owner defense.

CONCLUSIONS OF LAW — INNOCENT OWNERSHIP DEFENSE

1. The innocent owner defense is an affirmative defense in which claimant bears the burden of proving that he is an innocent owner by a preponderance of the evidence. 18 USC § 983 (d)(1); United States v. $10,560 U.S. Currency, 2009 U.S. Dist. LEXIS 25800 , *8 (E.D.Wash.).

2. An innocent owner whose property interest was in existence at the time the illegal conduct giving rise to forfeiture took place is one who (i) did not know of the conduct giving rise to forfeiture; or (ii) upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property. 18 USC § 983 (d)(2); United States v. $493,850 in U.S. Currency, 518 F.3d 1159, 1170 (9th Cir.2008).

3. Claimant, relying on the first section 983(d)(2) factor, asserts that he is an innocent owner because the currency came from a legitimate source and was intended for purchasing inventory for his wife’s 99-Cent Plus Store. Thus, claimant contends that he did not know the currency was connected to illegal drug activity. Doc. # 54 at 6-12.

4. The documentary evidence that claimant proffers to show that the currency came from a home mortgage loan does not establish by a preponderance of evidence that a loan was in fact procured and funds were distributed.

5. The testimonial evidence that claimant proffers to show that the currency came from the home mortgage loan is not credible.

6. Based on the evidence before the court, claimant fails to prove, by a preponderance of the evidence, that he is an innocent owner.

7. Accordingly, the court GRANTS the government’s motion for forfeiture and DENIES claimant’s motion for return of the currency.

CONCLUSION

For the foregoing reasons, GRANTS the government’s motion for final adjudication on the merits and DENIES that of the claimant. The clerk is DIRECTED to enter judgment in favor of the government and to close the file.

IT IS SO ORDERED.

. To the extent any of the findings of fact should more properly be considered conclusions of law, they shall be deemed as such. . To the extent any of the conclusions of law should more properly be considered findings of fact, they shall be deemed as such. . Claimant submitted Dr. Woodford's declaration with claimant’s reply brief two weeks before the November 4, 2010 hearing date. See Doc. ## 56, 57. The government subsequently moved to strike Dr. Woodford’s declaration, arguing that it did not have a meaningful opportunity to respond to Dr. Woodford’s expert testimony. See Doc. # 60. The court agrees, but rather than striking Dr. Woodford’s declaration, the court interprets the government’s motion as a challenge to Dr. Woodford’s expertise. Accordingly, the court conducts a Daubert analysis as to Dr. Woodford's testimony. . To the extent any of the conclusions of law should more properly be considered findings of fact, they shall be deemed as such. . To the extent any of the conclusions of law should more properly be considered findings of fact, they shall be deemed as such.