                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-2960
                                    ___________

United States of America               *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Nebraska.
$84,615 in U.S. Currency,              *
                                       *
            Defendant,                 *
                                       *
Jonah Bronstein,                       *
                                       *
            Claimant - Appellant.      *
                                  ___________

                              Submitted: June 16, 2004
                                 Filed: August 5, 2004
                                  ___________

Before SMITH, BEAM, and COLLOTON, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

       In this civil forfeiture case, Jonah Bronstein appeals: (1) the district court's1
denial of his request to argue that his civil forfeiture violated the Eighth Amendment
because it was excessive in proportion to his illegal drug conduct; (2) the district


      1
         The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.
court's grant of the government's request to amend the pre-trial order; (3) the district
court's finding that the government demonstrated by a preponderance of the evidence
support of the forfeiture of his currency pursuant to 21 U.S.C. § 881(a)(6). We affirm
the judgment of the district court.

                                        I.
       On January 28, 2002, Officer Stephen W. Worley of the Omaha Police
Department made a routine traffic stop of a vehicle (owned by Bronstein) in which
Bronstein was a passenger. Upon approaching the vehicle, Officer Worley noticed the
strong odor of marijuana. When asked about the odor, Bronstein admitted to smoking
marijuana in the vehicle and handed Officer Worley a bottle that contained a small
amount of marijuana. Bronstein represented that there was no more marijuana present
in the car.

      Officer Worley began a consensual search of the vehicle. Officer Worley asked
Bronstein how to open the trunk. Bronstein replied that opening the trunk required
a "special key," that was with a friend in California. Later, nonetheless, Bronstein
opened the trunk, and asked Officer Worley what was considered a "user amount" of
marijuana in Nebraska. Officer Worley replied that it was less than a pound, and
Bronstein then identified a backpack in the trunk that contained another small amount
of marijuana.

       During Officer Worley's search of the trunk, Bronstein interrupted the search
and informed Officer Worley that the trunk contained Bronstein's life savings (of
about $80,000 wrapped in plastic), which was earned in his gem and mineral
business. Police eventually uncovered seven air-tight bundles that contained $64,115
in a sealed, padded UPS Next Day Air package. Another three bundles, containing
$20,500, were also found in the trunk and concealed in a green bag. Officer Worley
cited Bronstein for possession of marijuana weighing less than one ounce.



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       On July 11, 2002, the United States filed a civil forfeiture action, alleging that
the money found in the vehicle was either proceeds traceable to the exchange of a
controlled substance or intended to be used to facilitate the possession and
distribution of a controlled substance pursuant to 21 U.S.C. § 881(a)(6). Bronstein
filed a claim asserting that the money belonged to him and was derived from the
closing of his gem and mineral business.

        After a bench trial, the district court concluded that the government had met its
burden of proving by a preponderance of the evidence that the money was connected
to illegal drug transactions. In reaching this conclusion, the district court relied on its
findings that Bronstein possessed illegal drugs, that he admitted that he was a drug
user, and that he possessed a large amount of money that had been carefully
concealed. The district court discounted Bronstein's explanations for possession of
the large sum of cash. Bronstein appeals.

                                       II.
       As noted above, Bronstein claims three points of error. We address each of
these arguments in turn.

            A. Denial of Bronstein's Pre-trial Order Amendment Motion
       Bronstein contends that the district court erred by not allowing Bronstein to
submit evidence that the civil forfeiture violated the excessive fines provision of the
Eighth Amendment. Specifically, Bronstein contends that he was not allowed to argue
the disproportionate nature of this civil forfeiture. The admissibility or exclusion of
evidence lies within the sound discretion of the district court. Hale v. Firestone Tire
& Rubber Co., 756 F.2d 1322, 1334 (8th Cir. 1985). We review the district court's
evidentiary rulings under an abuse of discretion. Anderson v. Genuine Parts Co., Inc.,
128 F.3d 1267, 1270 (8th Cir. 1997) (citing Schultz v. McDonnell Douglas Corp., 105
F.3d 1258, 1259 (8th Cir. 1997). The district court found that Bronstein's failure to
raise the issue of the disproportionate nature of the forfeiture under the Eighth

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Amendment prior to the hearing constituted a waiver of the argument, and the court
did not reach the merits of his argument. We find no error.

       "The [P]retrial [O]rder measures the dimensions of a lawsuit." Hale, 756 F.2d
at 1335. "In general, the [P]retrial [O]rder should be construed liberally to cover any
theory of recovery that might be embraced within the order's language." In re Papio
Keno Club, Inc., 262 F.3d 725, 729 (8th Cir. 2001). In this case, the district court
found that the issue had been waived because the Pretrial Order set forth three issues
to be determined at trial: (1) whether Bronstein had standing to challenge the
forfeiture; (2) whether Bronstein's currency was traceable to fruits of criminal
activity; (3) whether Bronstein could demonstrate that he was an innocent owner of
the property. None of these specified issues implicate the Eighth Amendment.

       "Orders entered following Rule 16 conferences are not lightly disturbed."
Alberty-Velez v. Corporacion De Puerto Rico Para La Difusion Publica, 242 F.3d
418, 423 (1st Cir. 2001). "The Pretrial Order supersedes all previous pleadings and
controls the subsequent course of action unless modified by a subsequent order."
Anderson, 128 F.3d at 1271 (citing Fed. R. Civ. P. 16(e)). A Pretrial Order "shall be
modified only to prevent manifest injustice." Fed. R. Civ. P. 16(e). In Hale, we
concluded that "[a] [P]retrial [O]rder will be modified only if there is no substantial
injury or prejudice to the opponent." Carroll v. Pfeffer, 262 F.3d 847, 850 (8th Cir.
2001) (quoting Hale, 756 F.2d at 1335) (finding that the district court committed
reversible error in admitting evidence excluded by the Pretrial Order without making
explicit findings that the other party would not be substantially prejudiced by the
modification)).

      The district court did not abuse its discretion in excluding evidence which was
offered to support a theory not advanced in the Pretrial Order. "[A] party may be
barred from advancing theories that are not identified in the [P]retrial [O]rder." Papio
Keno Club, 262 F.3d at 729. Bronstein did not seek a slight modification of the

                                          -4-
order's language; he instead attempted to offer an entirely new theory to invalidate the
forfeiture. We therefore conclude that the district court did not err in relying on the
Pretrial Order to define the parameters of the trial and excluding Bronstein's argument
that the forfeiture would violate the excessive fines provision of the Eighth
Amendment.

          B. Granting Government's Motion to Amend the Pretrial Order
      Bronstein also claims that the district court erred by permitting the Pretrial
Order to be amended after the close of the trial to conform to the evidence that was
presented at trial. "We review a district court's decision to grant or refuse amendments
to conform the pleadings to the evidence for an abuse of discretion." Clark v.
Martinez, 295 F.3d 809, 814–815 (8th Cir. 2002).

       At the conclusion of the trial, the government moved to amend the Pretrial
Order to encompass "controlled substance," not just "marijuana." The district court
granted the government's motion. Bronstein argues that the government's amendment
changed the nature of the offense to which the drugs were allegedly connected despite
the fact the officers during the stop and even Bronstein himself in his trial brief, may
have used the words "controlled substance." Bronstein contends that the present case
was tried based on the relationship of the currency to the marijuana found in the
vehicle and that the additional "controlled substance" language was prejudicial.

      A party's consent to trying a claim may be implied, and the pleadings presumed
amended, "if evidence to support the claim was introduced at trial without objection."
Shen v. Leo A. Daly Co., 222 F.3d 472, 479 (8th Cir. 2000); see, Fed. R. Civ. P. 15(b)
(provides that issues actually tried without objection are effectively incorporated into
the pleadings). Similarly, when an issue is tried by consent, it becomes of little
moment whether it was encompassed in the Pretrial Order. Papio Keno Club, 262
F.3d at 729.



                                          -5-
        In this case, the Pretrial Order indicated that the controverted and unresolved
issue was "whether the Defendant property is proceeds traceable to the transportation,
sale, receipt, possession and distribution of marijuana." The government moved after
trial to amend the Pretrial Order to change the language of the Pretrial Order by
replacing the word "marijuana" with the phrase "controlled substances." The district
court granted the motion stating, "[t]he [P]re-trial [O]rder was unnecessarily
particular." The court found Bronstein to have been "well-aware" from the
government's complaint that it sought to connect the money to controlled substances
generally and not just marijuana found in Bronstein's possession.

       Here, the government's evidence presented at trial raises the issue of
"controlled substances" by clear implication. The government's Exhibit 1–a
videotaped recording of the traffic stop–displays Officer Worley conversing with
Bronstein. On the videotape, Officer Worley told Bronstein that he believed the
money was "drug" proceeds. Officer Worley did not state that he believed the money
was "marijuana" proceeds. Also, in the parties' stipulation of facts, the parties agreed
that Bronstein asked Officer Worley if he would be able to show receipts concerning
the money found in the vehicle, "as long as no more drugs" were found in his
possession. Further, the parties agreed that Officer Worley's drug dog was an animal
certified to detect the odor of "controlled substances" and not just "marijuana."
Moreover, Bronstein's trial brief, filed before the trial began, addresses whether there
was a connection between the money and the illegal drug trafficking enterprise.
Throughout the trial, Bronstein failed to object to the government's attempt to connect
his proceeds with "controlled substances" and not limited to "marijuana." Bronstein
was on notice that the government would discuss the potential relationship of the
currency found in Bronstein's vehicle to "controlled substances."

      Therefore, we find no merit to Bronstein's contention that the district court's
decision to grant the government's request to amend the Pretrial Order to include
"controlled substance" was prejudicial to Bronstein. We conclude that the district

                                          -6-
court did not abuse its discretion by amending the Pretrial Order to be conformed to
the evidence introduced–and not objected to–at trial.

                             C. Forfeiture of Proceeds
       Finally, Bronstein argues that the government failed to demonstrate a
"substantial connection" between Bronstein's possession of marijuana and the
currency found in his vehicle, which the government sought to forfeit. Bronstein
argues that the only connection between the marijuana and the currency was the mere
fact that Bronstein possessed both while driving to northern California.

        Bronstein's currency was seized pursuant to 21 U.S.C. § 881.2 Section
881(a)(6) is a weapon in the war on drugs. United States v. One Hundred Thirty
Thousand Fifty-Two Dollars ($130,052.00) in U.S. Currency, 909 F.Supp. 1506,
1512 (M.D. Ala. 1995). Pursuant to 21 U.S.C. § 881(a)(6), all money furnished or
intended to be furnished in exchange for illegal drugs, all drug proceeds, and all
money used or intended to be used to facilitate illegal drug trafficking is subject to
civil forfeiture. United States v. Thirty-Nine Thousand Eight Hundred Seventy-Three
and No/100 Dollars ($39,873.00), 80 F.3d 317, 318 (8th Cir. 1996).


      2
          Section 881(a)(6) provides for the forfeiture of:

      [a]ll moneys, negotiable instruments, securities, or other things of value
      furnished or intended to be furnished by any person in exchange for a
      controlled substance in violation of this subchapter, all proceeds
      traceable to such an exchange, and all moneys, negotiable instruments,
      and securities used or intended to be used to facilitate any violation of
      this subchapter, except that no property shall be forfeited under this
      paragraph, to the extent of the interest of an owner, by reason of any act
      or omission established by that owner to have been committed or
      omitted without the knowledge or consent of that owner.

21 U.S.C. § 881(a)(6) (citations omitted).

                                           -7-
       In a forfeiture action under § 881, the United States bears the initial burden of
establishing by a preponderance of the evidence that the property is substantially
connected to drug trafficking. 18 U.S.C. § 983(c)(1) and § 983(c)(3). Circumstantial
evidence can be used by the United States to establish its burden of proof. United
States v. Ten Thousand Seven Hundred Dollars and No Cents in U.S. Currency, 258
F.3d 215, 224 n.6 (3rd Cir. 2001). In reviewing a forfeiture proceeding, we must
accept the district court's factual findings in support of its conclusion that the
government demonstrated by a preponderance of the evidence a connection of
Bronstein's property to drug trafficking unless those findings are clearly erroneous.
$39,873.00, 80 F.3d at 318. The district court's determination that the government
carried its burden based upon those factual findings, however, is subject to de novo
review as a mixed question of law and fact. Id.

       Here, the district court found that the government had met its burden of proving
by a preponderance of the evidence–even if circumstantial–that Bronstein's property
was substantially connected to drug trafficking. In reaching this conclusion, the
district court relied on its findings that Bronstein admittedly possessed marijuana on
his person and clothes, that he admitted that he was a drug user, that he had an
unusually large amount of cash that had been carefully concealed in seven
vacuum-sealed bags, and that a drug dog alerted to the seized currency. In contrast,
Bronstein claimed that the money represented his life savings, money from his uncle,
and the closing out of his mineral and gem business. The court did not find
Bronstein's proffered explanations credible.

      Our de novo review of the district court's substantial connection determination
similarly concludes that there existed sufficient evidence to establish by a
preponderance of the evidence a substantial connection between Bronstein's property
and drug trafficking. First, we have recognized that possession of a large amount of
cash (here, nearly $85,000) is strong evidence that the cash is connected with drug

                                          -8-
activity. United States v. U.S. Currency, in Amount of $150,660.00, 980 F.2d 1200,
1206 (8th Cir. 1992). Second, Bronstein undisputedly possessed illegal drugs at the
time of the money discovery. $39,873.00, 80 F.3d at 319. Third, the dog's alert to
Bronstein's currency provides some–albeit slight–indication that Bronstein's money
was connected to drug trafficking. United States v. $141,770.00 in U.S. Currency,
157 F.3d 600, 604 (8th Cir. 1998) (concluding that the dog's alert to the seized money
supported the government's contention that the currency was substantially connected
to illegal drugs).

        Additionally, Bronstein's behavior undermines the credibility of his assertions
of legitimate reasons for possessing the money. During the traffic stop, Bronstein
asked Officer Worley what constitutes a "user amount" of marijuana. He readily
admitted to possessing the marijuana that the officer had already detected but did not
disclose the additional small amount found in the backpack in his trunk. Bronstein
initially attempted to conceal the money's presence by falsifying to Officer Worley
his ability to open the trunk. Then, when discovery of the money was imminent, he
attempted to explain the money's presence. Bronstein transported the bulk of the
money in vacuum-sealed bags–a common ploy to mask odors such as might be
detected by dog searches. We conclude that the district court did not err in finding
that the government met its burden of showing a substantial connection between
Bronstein's property and drug trafficking by a preponderance of the evidence.

      For the foregoing reasons, the judgment of the district court is affirmed.
                      ______________________________




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