President Trump signed the Tax Cuts and Jobs Act (the “TCJA” or the “new law”) into law on December 22, 2017, and it makes wholesale revisions to the Internal Revenue Code (the “Code”), affecting both individuals and businesses. The changes to the Code include modifications of income tax rates, deductions and credits, international corporate taxation, and many other tax rules. The new law will take effect on December 31, 2017, and, due to the Senate’s budget constraints, will expire after 2025; at that time, the Code will revert to the old law unless Congress elects to preserve the TCJA. Returns for the 2018 will be the first to apply these new rules.
What follows is a summary of the new law’s revisions to the Code, and their effects on both individuals and entities. CLICK HERE to see the new tax brackets for 2018.
The TCJA eliminates the personal exemption in favor of a higher standard deduction.
The TCJA repeals the overall limitation on itemized deductions. Under old law, the total amount of otherwise allowable deductions was limited for certain upper-income taxpayers under § 68 of the Code.
The new law temporarily increases the exemption amount and the exemption amount phase-out for the individual AMT to $70,300 ($109,400 for married couples filing jointly) and $500,000 ($1 million for married couples filing jointly) respectively. The exemption and phase-out are indexed for inflation. These changes take effect for the tax years beginning after December 31, 2017 and expire January 1, 2026.
The corporate AMT is permanently repealed.
The TCJA provides owners of pass-through entities (LLCs, S Corporations, general partnerships, and sole proprietorships) a 20% deduction on qualified business income. This deduction is limited to $315,000 for married couples filing a joint return and $157,500 for individual taxpayers operating a personal service business. For the purposes of this revision, “qualified business income” includes the net amount of qualified items of income, gain, deduction, and loss with respect to the individual’s qualified trade or business; these items must be effectively connected to the conduct of a trade or business within the US. “Qualified business income” does not include a shareholder’s reasonable compensation, guaranteed payments, or payments to a partner who is acting in a capacity other than partner.
The new law limits the itemized deduction for SALT to $10,000, taking state and local property, sales, and income taxes into consideration. Alternatively, the TCJA continues to allow unlimited SALT deductions in carrying on a trade or business. Foreign real estate taxes do not apply to the deduction.
The new law allows taxpayers to claim mortgage interest deductions on up to $750,000 in mortgage debt, which is down from $1,000,000 under old law. This change does not affect homeowners who already have a mortgage, and the old deduction limit will apply.
Further, the new law suspends deductions on home equity loans until 2025.
The “Kiddie Tax” applies to children under the age of nineteen (or twenty-four if the child is a student) whose net unearned income exceeds $2,100 in a taxable year. The new law splits this income into two parts, where the amount up to $2,100 is taxed at the child’s rate, and the amount exceeding $2,100 is taxed at the parents’ rate (see above tables for applicable rates).
While the House’s version of the bill proposed to repeal the estate tax, the final version of the Tax Cuts and Jobs Act keeps the estate tax intact. The final law increases the lifetime estate and gift exclusion from $5,000,000 to $10,000,000 (this amount is adjusted for inflation, so while the exclusion was $5,490,000 in 2017, that amount would double to almost $11,000,000). This means that if a taxpayer’s taxable estate is less than or equal to $10,000,000, the estate would not incur any tax liability.
Miscellaneous Itemized Deductions: Prior to the amendments imposed under the TCJA, miscellaneous itemized deductions could only be claimed to the extent the deductions exceeded 2% of a taxpayer’s adjusted gross income. The new law, however, suspends all deductions that were previously affected by this limitation until 2025.
Alimony: Under old law, alimony and separate maintenance payments were included in the recipient’s gross income and deductible by the payor. The new law amends this treatment by disallowing a deduction by the payor. This change applies to any divorce or separation agreement entered into after December 31, 2018.
Retirement Accounts: The laws pertaining to the permitted contributions to retirement accounts (401(k)s, IRAs, and Roth IRAs) are largely untouched by the TCJA. However, the new law prevents the recharacterization of contributions to unwind a Roth IRA. For example, contributions to a traditional IRA that are later recharacterized to Roth contributions are not permitted. Alternatively, contributions to Roth IRAs can be recharacterized to traditional IRA contributions before the individual files his or her tax return.
Limitations on Losses: Beginning December 31, 2017 through January 1, 2026, excess business losses incurred by a taxpayer other than a corporation will not be allowed, and will be considered part of the taxpayer’s net operating losses that can be carried forward. Excess business losses are the excess of aggregate deductions of the taxpayer attributable to the taxpayer’s trade or business over the sum of aggregate gross income or gain of the taxpayer plus a threshold amount; the threshold amount for a taxable year is $250,000, which is indexed for inflation. This provision will apply at the partner (partnership) or shareholder (S Corp.) level after the passive laws rules in § 469 of the Internal Revenue Code have been applied.
Medical Expenses: The TCJA expands the deduction for unreimbursed medical expenses, reducing the threshold from 10% to 7.5% of adjusted gross income.
Contributions to Public Charities: The percentage limit for cash contributions to public charities increases from 50% to 60%.
Child Tax Credits: Married couples filing jointly earning up to $400,000 in gross income a permitted to claim $2,000 in credits per child, and $1,400 is refundable. For other taxpayers, the credit phases out after $200,000 in gross income.
Casualty Losses: Taxpayers can only claim a deduction for casualty losses in presidentially declared disasters under the new law.
Moving Expenses: The exclusion from gross income and wages for qualified moving expense reimbursements is suspended through 2025. This provision does not apply to members of the armed forces on active duty who move pursuant to a military order.
Affordable Care Act Individual Mandate: The individual mandate imposed under the Affordable Care Act will be repealed starting in 2019, and those who do not choose to purchase a health insurance plan pursuant to the ACA will not incur penalties.
§ 179 Expensing for Depreciable Assets: The new law increases the maximum amount a taxpayer may expense under § 179 of the Code to $1 million, and increases the phase-out threshold amount to $2.5 million; the amounts are indexed for inflation for the taxable years beginning after 2018.
The TCJA further expands the definition of § 179 property to include certain depreciable tangible property used predominantly to furnish lodging or in connection with furnishing lodging. The new law expands the definition of qualified real property eligible for § 179 expensing as well, allowing the following improvements to nonresidential real property placed in service after the date such property was first placed in service: roofs, heating, ventilation, and air-conditioning property; fire protection and alarm systems; and security systems.
Net Operating Losses: The TCJA limits the deduction for net operating losses to 80% of taxable income (determined without regard to the deduction). Taxpayers may carry net operating losses forward indefinitely. The two-year carryback and special net operating loss carryback provisions are repealed.
Certain Self-Created Property Not Treated as a Capital Asset: The new law amends § 1221(a)(3) of the Code, and excludes patents, inventions, models or designs (whether or not patented), and secrets formulas or processes (whether self-created or purchased) from the definition of “capital asset,” and the sale of these assets will not be considered a capital gain or loss.
Like-Kind Exchanges: Like-kind exchanges falling under § 1031 of the Code are limited to exchanges of real property that is not held primarily for sale. The new law generally applies to exchanges completed after December 31, 2017; however, this provision does not apply if property was disposed of in the exchange prior to December 31, 2017 or if property was received prior to that date.
Entertainment Expenses and Fringe Benefits: The TCJA disallows a deduction with respect to (1) an activity generally considered to be entertainment, amusement, or recreation; (2) membership dues with respect to any club organized for business, pleasure, recreation, or other social purposes; or (3) a facility or portion thereof used in connection with any of the above items.
Additionally, the new law disallows a deduction for expenses associated with providing any qualified transportation fringe to employees of the taxpayer, and except as necessary for ensuring the safety of an employee, any expense incurred for providing transportation (or any payment or reimbursement) for commuting between the employee’s residence and place of employment.
Meals: For amounts incurred and paid between December 31, 2017 and December 31, 2025, the TCJA expands the 50% deduction limitation for employee meal expenses to those expenses associated with providing food and beverages to employees through an eating facility that meets requirements for de minimis fringes and for the convenience of the employer. The amounts incurred and paid after December 31, 2025 will not be deductible.
Partnership Technical Terminations: The new law repeals the rule from § 708(b)(1) of the Code providing technical terminations of partnerships. The provision does not change the present-law rule of § 708(b)(1)(A) that a partnership is considered as terminated if no part of any business, financial operation, or venture of the partnership continues to be carried on by any of its partners in a partnership.
Amortization of Research and Experimental Expenditures: The new law requires businesses to capitalize and amortize ratably over a five-year period amounts defined as specified research or experimental expenditures. Specified research or experimental expenditures that are attributable to research that is conducted outside the US must be capitalized ratably over a 15-year period.
Year of Inclusion: The TCJA requires accrual-method taxpayers subject to the all-events test to recognize items of gross income for tax purposes in the year in which they recognize the income on their applicable financial statement. The new law provides an exception for taxpayers without an applicable or other IRS-specified financial statement.
Compensation for Covered Employees: The TCJA revises the definition of a covered employee under § 162(m) of the Code to include both the principle executive officer and the principle financial officer, and reduces the number of other officers included to the three most highly compensated officers for the tax year. If the individual is a covered employee for any tax year after 2016, that individual will remain a covered employee for all future years. The new law also removes current exceptions for commissions and performance-based compensation. The new law does not apply to any remuneration under a written contract that was in effect on November 2, 2017, and that was not later modified in any material respect.
Territorial Taxation System: The TCJA shifts to the territorial tax system, which imposes US tax on domestic income. This is opposed to the old, worldwide system, where the US taxed income earned from both foreign and domestic sources.
Foreign-Source Income: The new law allows an exemption for certain foreign income by means of a 100% deduction for the foreign-source portion of dividends received from specified 10% owned foreign corporations by domestic corporations.


§ 266-2 Sidewalk construction standards.
§ 266-3 Construction specifications of sidewalk to be obtained.
§ 266-4 Care of sidewalk by owner or occupant.
§ 266-5 Deposit of snow in streets prohibited.
§ 266-6 Permit required for placing building materials on streets.
§ 266-8 Leaving vehicles upon sidewalks prohibited.
§ 266-9 Digging into or under sidewalks restricted.
§ 266-10 Marking streets or public property restricted.
§ 266-11 Stringing wires over streets restricted.
§ 266-12 Sight distances at intersections.
§ 266-13 Opening of streets by property holders.
§ 266-14 Opening of streets by public utility companies.
§ 266-15 Permission required for curb cuts.
§ 266-16 Backfilling of street openings.
§ 266-17 Repair of imperfect replacement work.
§ 266-18 Location of utilities.
§ 266-19 Opening of conduits, pipes and hydrants restricted.
§ 266-20 Penalties for offenses.
Department of Public Works — See Charter, Art. XXII.
Brush, grass and weeds — See Ch. 86.
Conduct at fires — See Ch. 140.
Gasoline stations — See Ch. 161.
Noise — See Ch. 210.
Peddling and soliciting — See Ch. 217.
Railroads — See Ch. 228.
Signs — See Ch. 244.
Snow and ice removal — See Ch. 253.
Snowmobiles — See Ch. 257.
Taxicabs — See Ch. 279.
Abandoned vehicles — See Ch. 300.
Curb, sidewalk and street requirements — See Ch. A330.
Depressed curb driveways — See Ch. A331.
The boundaries of a roadway, whether marked by curbstone or not so marked.
All persons making use of public streets for foot passage.
That portion of a street outside of the roadway, used or set aside for the use of pedestrians.
The entire width between the boundary lines of every way when any part thereof is open to the use of the public for purposes of vehicular travel.
All sidewalks must be set to the slope, grade, width, pitch and location established by the Commissioner of Public Works.
Subbase. The subbase shall be thoroughly rammed and all soft spots removed and replaced by hard materials.
When a fill exceeding one foot in thickness is required, it shall be thoroughly compacted by tamping in layers not exceeding six inches.
The top of all fills shall extend at least 12 inches beyond the sidewalk.
Sand: 1,413 pounds (damp weight).
Gravel: 1,906 pounds (damp weight).
Course aggregate to be 3/4 inch to No. 4 sieve.
This mix is set up using washed lake aggregates. Should other aggregates be used, the weights shall be adjusted to their true specific gravity.
No material other than the mix above specified shall hereafter be used for the construction or reconstruction or repair of sidewalks in the City of Hudson, unless permission in writing is granted by the Commissioner of Public Works.
All excavated material shall be removed from premises where sidewalk is constructed, reconstructed or repaired.
Protection. When completed, the sidewalk shall be kept moist and protected from traffic and the elements for at least one day. The forms shall be removed with great care, and upon their removal, earth shall be banked against the edges of the walk. The walk must have a pitch of at least 1/8 inch per foot toward the curb or street.
All sidewalks shall be not less than four inches in thickness, except that portion which is across a driveway, which shall be six inches in thickness; all sidewalks shall be four feet in width; provided, however, that the Commissioner of Public Works shall have the power to modify the above in all cases.
No fill excepting dirt shall be placed between the sidewalk and the curb or roadway without first securing the permission and approval of the Commissioner of Public Works.
No person, firm or corporation shall construct, reconstruct or grade a sidewalk or any street, avenue or alley until he shall have obtained the slope, grade, width, pitch, location and details of construction of the walk, in writing, from the Commissioner of Public Works.
The owner or occupant of any premises adjoining any street where a sidewalk has been laid shall keep the sidewalk on such street in good repair and free and clear of snow, ice, dirt and any other material or substance. For the purpose of snow and ice removal, such sidewalk shall be cleared the entire length and width thereof. In the event that such snow and ice is frozen so hard that it cannot be removed without material difficulty or injury to such sidewalk, such owner or occupant shall cause sufficient ashes, sand, sawdust, salt or other suitable material to be spread thereon so as to provide a safe path at least two feet in width the entire length thereof. As soon thereafter as weather permits, such owner or occupant shall thoroughly clean said sidewalk.
No person, firm or corporation shall plow, shovel, sweep, heap up or in any other manner deposit or place snow, ice, slush or any other material or substance on any street or any other public place in the City of Hudson.
No building material shall be placed upon any street without a permit from the Commissioner of Public Works. Such permit shall be for a period no longer than three months and shall not authorize the obstruction of any sidewalk or gutter or of more than 1/3 of the roadway immediately opposite the lot upon which the building is to be erected, and shall be revocable for cause by the Commissioner of Public Works. The holder of such permit shall so guard such material with red lights at night as to avoid accidents. Upon revocation of such permit, all materials deposited pursuant to such permit shall be removed within 48 hours and the street restored to its original condition.
Purpose. The Common Council of the City of Hudson has determined that the obstruction of the public sidewalk is a nuisance and cannot be tolerated and yet recognizes that certain businesses can, on occasion, display their goods upon the public way in front of their place of business without impeding pedestrian traffic and that such displays, when properly maintained and controlled, can be a public convenience and will not adversely affect the surrounding area. The following regulations shall apply.
Encumbrances or obstructions on sidewalks.
No person, firm or corporation operating an establishment that owns or is the tenant of a building adjoining a public sidewalk shall vend, sell, dispose of or offer to vend, sell or dispose of or display any goods, wares or merchandise on the portion of the public sidewalk in front of his or her or its premises, unless there is a minimum of four feet clear space on the sidewalk. A minimum of a twenty-four-inch clearance must be maintained between the outer edge of the sidewalk forming the curb and any items placed on the sidewalks. No merchandise or sign shall be displayed upon or affixed against or between any parking meter, fire hydrant, telephone or utility lines and/or poles, other than what is allowed by the New York State Public Service Commission and with written authorization by the Mayor of Hudson.
No flags or banners maybe hung over sidewalks unless there is a minimum of six feet six inches clearance from the ground.
Inspections. The Department of Code Enforcement shall make or cause to be made sufficient inspections to ensure compliance with the provisions of the City Code.
No person, firm or corporation shall drive, ride or leave any vehicle, as defined in the Vehicle and Traffic Law, upon any portion of any sidewalk, except crossing the same for the purpose of entering or leaving any premises.
No person, firm or corporation shall dig into or under any sidewalk, of remove, displace or carry away any dirt, soil, plant, concrete or other material of which the sidewalk may be constructed, except when the Commissioner of Public Works shall have approved the same.
The Commissioner of Public Works shall also be authorized to permit the installation of snow and ice control systems into the sidewalk base or concrete. Such system shall be identified to the Commissioner of Public Works by as-built construction drawings. The adjacent property owner shall assume all liability for the repair and maintenance of such system and shall hold the City of Hudson harmless from any cause or cause of action arising from the installation and operation of such system. This agreement shall be included in a written easement to be prepared by the Legal Advisor, executed by the Mayor on behalf of the City of Hudson, and recorded in the indices of deeds in the Columbia County Clerk's office by the adjoining property owner.
No person, firm or corporation, unless authorized by the Commissioner of Public Works, shall paint, mark, write, print or stencil any letters, figures, pictures or characters of any kind upon any street, public building or any other public property.
No person shall attach or string any electric or other wire or adjust or carry the same into or over any street, road, highway or public place except with written permission from the Commissioner of Public Works.
All owners, tenants and/or occupants in charge of premises at any corner formed by the intersection of streets shall, within 15 days of the receipt from the Commissioner of Public Works of written notice to do so, trim, prune and, if necessary, remove all hedges, brush, shrubs and overhanging limbs of trees or any obstacle upon such part of the premises as specified in said notice, to the end that persons driving vehicles upon either of such intersecting streets shall have clear and unobstructed vision for a distance of at least 20 feet from such intersection, measured along such street.
The Commissioner of Public Works may grant permission, on an application by the owner or occupant of any lot or property abutting upon a public street, highway or road of the City, or any individual, firm, partnership or corporation engaged in the business of plumbing and who retains a current plumbing license in the City of Hudson, to open the right-of-way or such portion as lies between the property line and the edge of the paved street, road or highway for the purpose of laying gas, sewer or water pipe from the edge of paving in said street, highway or road to the line of said lot or property, or for the purpose of repairing such pipe or sewer.
The person receiving such permit shall cause the work to be completed within such time and in such manner as the Commissioner of Public Works shall direct, and shall cause any opening made in such portion as lies between the property line and the edge of the paved street, highway or road to be restored in as good a condition as it was before such opening was made.
The Commissioner of Public Works may grant permission, upon application by any individual, firm, partnership, public utility service or corporation engaged in the business of communications, electric power transmission or service, or selling water or gas and maintaining pipelines therefor, to open such street, highway or road for the purpose of laying gas or water pipe, communications conduit, electric conduit, etc., or for the purpose of repairing or maintaining such pipe, conduit or mediums of transfer, or to any individual, firm, partnership or corporation engaged in the business of plumbing and who retains a current plumbing license in the City of Hudson, for the purpose of laying sewer or water pipe from the main pipe or sewer in said paved portion of street, highway or road, or for the purpose of repairing such pipe or sewer.
The person receiving such permit shall cause the work to be completed within such time and in such manner as the Commissioner of Public Works shall direct, and shall cause any opening made in such street, highway or road to be restored to as good a condition as it was before such opening was made.
No person, firm or corporation shall cut the curb or binder of any street pavement in the City unless authorized by the Commissioner of Public Works.
Every such street, highway or road opening shall be backfilled, and such backfill shall be of such materials as shall be directed by the Commissioner of Public Works.
If at any time after any street, highway or road opened for any of the purposes mentioned in §§ 266-13 and 266-14 hereof shall have been replaced, it shall appear that the work of replacing or repaving the same was imperfectly performed, the Commissioner of Public Works shall notify said applicant, owner or occupant to put the same in as good condition as it was before opened; and if said applicant, owner or occupant, after receiving such notice, shall neglect or refuse to repair said street, highway or road within 48 hours thereafter, then the Commissioner of Public Works may cause the necessary repairs to be made and report the expense thereof to the City of Hudson.
The location of all utilities within a street, except lateral connections, shall be approved by the Commissioner of Public Works.
No person shall open, expose or interfere with any electric conduit, water pipe, hydrant, basin pool or other construction except by permission of the Commissioner of Public Works.
Any person committing an offense against any provision of this chapter shall be guilty of a violation punishable as follows: by imprisonment for a term not exceeding 15 days or by a fine not exceeding $2,500, or by both such fine and imprisonment. The continuation of an offense against the provisions of this chapter shall constitute, for each day the offense is continued, a separate and distinct offense hereunder.


text:
STATE of Minnesota, Petitioner, Appellant, v. Verne Jack Edward CHAMPION, Respondent.
*41 Hubert H. Humphrey, III, Atty. Gen., St. Paul and Michael O. Freeman, Hennepin County Atty., J. Michael Richardson, Asst. County Atty., Minneapolis, for appellant.
Michael J. Colich, Claudia J. Engeland, Colich & Associates, Minneapolis, for respondent.
In its decision in this case, the court of appeals affirmed a pretrial order of the district court suppressing evidence in the prosecution of defendant, Verne Jack Edward Champion, for first-degree murder and attempted aggravated robbery. State v. Champion, 517 N.W.2d 350 (Minn.App.1994). At issue is the admission of certain statements defendant made to the police at various times during the course of the police investigation. During what was initially a noncustodial, consensual encounter, defendant made a highly incriminating statement. The trial court held that subsequent questioning was custodial in nature and that the police therefore should have given defendant a Miranda warning before continuing to question him. The trial court suppressed the oral unrecorded statements made in response to further interrogation. It also suppressed a subsequent post-Miranda transcribed confession on the ground that the confession was involuntary. The court of appeals affirmed the trial court's suppression order. We affirm the suppression of the oral unrecorded statements made by defendant after the point at which the trial court determined that defendant was in custody, but we reverse the suppression of the transcribed statements made following the giving of the Miranda warning.
On October 25, 1992, Howard Liebhaber was found dead in his condominium at 25th and Lyndale Avenue South in Minneapolis. His hands were bound behind his back and there was a gag in his mouth. An autopsy revealed that he died of asphyxiation caused by manual strangulation.
Police investigators learned that the victim had been talking with two young men outside the Gay Nineties Bar early on October 25, 1992. An anonymous informant told police that defendant might have information about the murder, and a bouncer at the Gay Nineties told police that someone had seen defendant *42 talking with the victim inside the Gay Nineties on the night in question.
Police officer Patricia Hellen, who worked off-duty at the Y'all Come Back Saloon (Saloon), told investigating officers that a regular at the Saloon, later identified as defendant, fit the composite drawing of one of the two men with whom the victim was last seen. On November 29, 1992, over a month after the killing, Officer Hellen saw defendant at the Saloon. She noticed that his hair was parted differently and had been dyed. She informed Sergeants Steven Berg and Richard Edinger, who had been assigned to the case, of her observations and asked defendant to call Sergeant Berg.
On November 30, 1992, after receiving a call from defendant, Sergeants Berg and Edinger went to the McDonald's where defendant worked. When the officers told defendant they wanted to talk with him about the victim's murder, defendant requested that they talk with him elsewhere. Sergeant Berg asked defendant if he would prefer to go downtown to the homicide office, and defendant agreed.
At the homicide office, defendant admitted knowing the victim and admitted having talked with him outside the Gay Nineties after closing on October 25, 1992. He said that he had introduced the victim to another person, whom he did not know. He said that he had been at the victim's condominium for a party on Groundhog Day in 1989, but had not been there since then. At Officer Berg's request, defendant drew the floor plan of the victim's condominium as he remembered it; defendant drew a floor plan of an efficiency. After defendant left, police obtained the floor plan of the condominium in 1989 and determined that while the floor plan in 1992 was as depicted by defendant, it was not that way in 1989 when defendant said he had last been there.
Late on January 7, 1993, Sergeants Berg and Edinger went to the Saloon, encountered defendant and told him they wanted to talk with his cousin, who was also at the Saloon. After dropping off Sergeant Edinger and defendant's cousin at the homicide office, Sergeant Berg returned to the Saloon and learned that defendant had left to catch a bus.
Upon spotting defendant sitting alone in the back of a bus at a bus stop, Sergeant Berg drove in front of the bus, got out of his car, and entered the front of the bus. Defendant immediately got up, left the bus via the back door, walked up to Sergeant Berg's car, and, as Sergeant Berg exited the bus, said "Front or back seat?" Sergeant Berg opened the front door and said "Front seat." Officer Berg did not search or handcuff defendant. After defendant was in the car, Sergeant Berg asked him if it would be okay if they went to the office. Defendant expressed concern about getting home, since that bus was the last one of the day, and Berg told him that he would "make sure" that he got home.
Sergeant Berg testified that upon arriving at the police station he seated defendant in an interview room, closed the door, and told defendant that he was still investigating the victim's death. The interview began at approximately 1:30 a.m. At approximately 2:30 a.m. defendant took a cigarette and bathroom break. Previously defendant had twice taken breaks to get a drink of water from a fountain in a hall outside the interview room. On each of these three breaks defendant left the interview room unescorted. After defendant returned to the interview room following the cigarette and bathroom break, he admitted the victim had invited his friend Brett and he to the victim's condominium the night of the killing, and that they had accepted intending to "roll" the victim. Defendant then began sobbing. Sergeant Berg asked what happened, to which defendant responded, "I put my hands around his neck and tried to suffocate him into unconsciousness."
After questioning defendant for approximately 90 more minutes, at 4 a.m. Sergeant Berg finally told defendant that he was under arrest. After informing defendant he was under arrest, Sergeant Berg let defendant leave the interview room unescorted to go to the bathroom and to smoke a cigarette. After defendant returned, he agreed to give a written statement. Sergeant Berg then gave defendant a Miranda warning and obtained a waiver of his right to remain silent. *43 Defendant then gave a 7-page written confession repeating the unrecorded admissions he had made earlier.
The trial court ruled that the interrogation on January 8 was not the functional equivalent of custodial or post-arrest interrogation at the time the interrogation started, because defendant came to the station voluntarily and voluntarily submitted to questioning, just as he had done on November 30. However, the trial court ruled that once defendant told Sergeant Berg that he had tried to suffocate the victim, defendant would not reasonably feel free to leave. The trial court therefore ruled that defendant's subsequent statements to Sergeant Berg up to the point a Miranda warning was given had to be suppressed. The trial court ruled further that the post-Miranda statements had to be suppressed, based on the trial court's belief that the waiver of Miranda rights was involuntary.
The court of appeals affirmed the trial court's determination that defendant was in custody after he broke down and admitted trying to suffocate the victim. The court of appeals stated, in relevant part, that "[a] reasonable person could not feel free to leave an interrogation in a murder investigation after admitting to police that he suffocated the murder victim." 517 N.W.2d at 356. Stated differently, defendant's admission that he attempted to suffocate the victim was an objective change in the circumstances "conclusively" converting the interrogation from a noncustodial one into a custodial one. Id. at 357.
While we affirm the trial court's determination that defendant was in custody after he admitted trying to suffocate the victim, we disagree with the court of appeals' analysis. The court of appeals appears to have adopted a "bright line rule." As the court of appeals put it, "[a] reasonable person could not feel free to leave an interrogation in a murder investigation after admitting to police that he suffocated the murder victim." 517 N.W.2d at 356. Case law, however, does not support that rule.
We follow the custody test adopted in Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). The test is whether a reasonable person under the circumstances would believe that he or she was in police custody of the degree associated with formal arrest. State v. Rosse, 478 N.W.2d 482, 484 (Minn.1991) (citing Berkemer, 468 U.S. at 442, 104 S.Ct. at 3151). The test is not whether a reasonable person would believe he or she was not free to leave. Moreover, an officer's unarticulated decision not to let the suspect leave at the end of the interrogation has no bearing on the question of whether a suspect was in custody; the only relevant inquiry is how a reasonable person in the suspect's position would have understood the situation. Berkemer, 468 U.S. at 442, 104 S. Ct. at 3151. The underlying purpose of Miranda was to stop certain coercive practices used by police in custodial interrogation. If a station house interrogation is noncustodial at the outset and police do not change any of the circumstances of the interrogation during the course of the interrogation, they should be free to continue to ask questions after the suspect makes a significant incriminating statement without first stopping and giving the suspect a Miranda warning, provided that a reasonable person under the circumstances would not believe that he or she was in police custody of the degree associated with formal arrest. Rosse, 478 N.W.2d at 484. No "bright line rule" exists.
Here the interrogation was noncustodial at the outset. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714 (1977); California v. Beheler, 463 U.S. 1121, 1124-25, 103 S. Ct. 3517, 3520, 77 L. Ed. 2d 1275 (1983). However, that does not end our inquiry. The ultimate issue for the trial court to decide in this case was whether a reasonable person, having just confessed that he attempted to suffocate the victim, would, under all the circumstances, believe he or she was in police custody of the degree associated with formal arrest. See Rosse, 478 N.W.2d at 486 (stating that where "[n]one of [the] circumstances taken separately creates custody" and "some of the circumstances * * * might suggest a noncustodial situation[,] * * * [but] taken as a whole, we conclude the facts and circumstances of this case were such that a reasonable person would believe that she was in *44 custody and was being restrained to a degree associated with a formal arrest.").
Here the trial court used the proper legal standard and made a fact-specific determination that the police interrogation of Champion, although not custodial at the outset, became custodial in nature after he admitted choking the victim. We give considerable, but not unlimited, deference to a trial court's fact-specific resolution of such an issue when the proper legal standard is applied. Minnesota v. Olson, 495 U.S. 91, 100, 102, 110 S. Ct. 1684, 1690, 1691, 109 L. Ed. 2d 85 (1990). In this case, while individual members of this court might well have resolved the dispute differently, we conclude that the trial court did not clearly err in resolving the matter as it did.
While we affirm the court of appeals' determination as to whether interrogation of defendant became custodial in nature, we disagree with the court of appeals' analysis which led to its affirmance of the trial court's determination that defendant's transcribed confession, given after he received a Miranda warning, was involuntary. The court of appeals' analysis of this issue is inconsistent with decisions of both the United States Supreme Court and of this court that generally a failure to give a required Miranda warning does not render involuntary any subsequent statement made after the giving of a Miranda warning. State v. Moorman, 505 N.W.2d 593, 599-600 (Minn.1993) (citing Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985)).
It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.
Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements.
Id. at 318, 105 S. Ct. at 1297 (footnote omitted).
[A]ge, maturity, intelligence, education, experience, ability to comprehend, lack of or adequacy of warnings, length and legality of detention, nature of interrogation, physical deprivations, limits on access to counsel and friends, and others.
Looking at all the relevant factors in this case, we conclude that the trial court clearly erred in determining that defendant's transcribed confession was involuntary.
Affirmed in part, reversed in part, remanded for trial.

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§ 200-1 Statement of purpose.
§ 200-4 Basis for establishing areas of special flood hazard.
§ 200-6 Abrogation and greater restrictions.
§ 200-8 Warning and disclaimer of liability.
§ 200-9 Establishment of development permit.
§ 200-12 Use of other base flood data.
§ 200-13 Information to be obtained and maintained.
§ 200-14 Alteration of watercourses.
§ 200-15 Interpretation of FIRM boundaries.
§ 200-17 Conditions for variances.
§ 200-21 Violations and penalties; injunctions.
Drainage structures and facilities — See Ch. 138.
Environmental impact statements — See Ch. 160.
Land use — See Ch. 230.
Sewers — See Ch. 300.
Soil movement — See Ch. 308.
Stormwater control — See Ch. 323.
Water — See Ch. 394.


Kenneth Joseph Kukec, Miami, Fla. (Albert J. Krieger, Susan W. Van Dusen, Albert J. Krieger, P.A., of counsel), for claimant-appellant.
Arthur P. Hui, Asst. U.S. Atty. E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Robert L. Begleiter, Asst. U.S. Atty., of counsel), for plaintiff-appellee.
Before CARDAMONE, WALKER and FRIEDMAN,* Circuit Judges.
This appeal arises as a result of the efforts of a defendant, detained in a foreign jurisdiction, to avoid criminal prosecution in the United States, while attempting at the same time to assert his claim to real property in this country, allegedly purchased with the proceeds of his criminal activities. It has been a truism for nearly half a millennium that "one cannot eat his cake and have it too." Defendant of course may elect to oppose extradition, but that choice has negative consequences that he may not evade. For the reasons discussed below, we affirm the August 21, 1990 decision of the United States District Court for the Eastern District of New York (Raggi, J.) 745 F. Supp. 118, holding that appellant Johnny Eng is disentitled from contesting a civil forfeiture proceeding instituted by the government against real property Eng claims ownership of so long as he continues to fight extradition that would return him to the United States to face criminal charges pending against him.
In August, 1989 a grand jury in the Eastern District of New York returned an indictment against Eng on charges that he operated a continuing criminal enterprise in violation of 21 U.S.C. § 848(b), and on 17 additional charges under the narcotics laws, all involving the alleged sale of heroin. The continuing criminal enterprise offense carries a mandatory term of life imprisonment without parole. Eng had been detained in Hong Kong on suspicion of violating a local ordinance, and the authorities in that British Crown Colony on August 17, 1989 arranged for his release to Interpol agents pursuant to a detainer issued under Article VIII of the Extradition Treaty between the United States and the United Kingdom. The detainer was the result of a provisional arrest warrant requested by the United States under the Treaty. Since his arrest Eng has resisted extradition to the United States where the government seeks to prosecute him on the continuing criminal enterprise and narcotics charges.
In December, 1989, several months after Eng's arrest, the government filed under 21 U.S.C. § 881(a) (6) (1988) a civil in rem forfeiture action in the Eastern District of New York against certain real property located in New York and Pennsylvania. An amended verified complaint filed on February 15, 1990 charged that the properties were purchased with the proceeds of the narcotics offenses for which Eng had been indicted. Arrest warrants against the properties in rem issued, listing Eng, his wife, his sister-in-law, and his uncle as potential claimants. The arrest warrants, an amended verified complaint, and a set of interrogatories were served on the properties on March 1, 1990, and copies also were served on Eng's relatives between March 7 and March 10, 1990. In addition, the government by publication on March 12-14, 1990 in the New York Post gave notice of its pending civil action.
On March 15, 1990 Eng's wife and uncle filed verified notices of claims to certain of the properties. Also on March 15, Eng filed a motion for an order to show cause why the subject properties should not be released summarily from arrest or, in the alternative, for a dismissal of the government's claims to the properties outside New York, or for an indefinite stay of the civil proceedings pending the conclusion of any criminal proceedings against him. Eng's motion stated that he was a potential claimant to the properties but did not identify what, if any, interest he had. He asserted in addition that the government had failed to provide him with proper notice of the action.
The government served notice on Eng personally in his Hong Kong prison cell on March 23, 1990. On May 1, 1990 it moved for an entry of a decree of forfeiture against the properties based on the failure of any potential claimant to file a verified answer to the complaint within the applicable 20-day period. See Mercado v. United States Customs Service, 873 F.2d 641, 644-45 (2d Cir. 1989) (describing the forfeiture process). On May 25, 1990 the district court heard oral argument on the government's motion for a default judgment, on Eng's motion, and on the motions of claimants Lori Eng and Chik Kun Wong, Eng's wife and uncle, respectively, for leave to file responses to the government's amended verified complaint and interrogatories. Several days later the motions of Eng's wife and uncle to file untimely verified answers was granted, and a default judgment on those properties for which no verified claim had been filed. At the hearing the court heard argument on whether Eng himself was entitled to contest the forfeiture procedures, given his continued resistance to extradition.
On August 21, 1990, after further proceedings, Judge Raggi granted a default judgment against Eng, denied his application for an order to show cause or to dismiss the action, and held that Eng lacked both statutory standing and was disentitled to be heard because of his resistance to extradition. The district court opinion is reported at 745 F. Supp. 118 (E.D.N.Y. 1990). A default judgment in favor of the United States was entered on August 30, 1990. It is that judgment which Eng now appeals.
On appeal Eng raises two issues. He contends that the district court erred in finding that (1) he was a fugitive and therefore not entitled to be heard in this civil forfeiture proceeding, and (2) he lacked statutory standing to challenge the forfeiture because he failed to file his claim timely under Admiralty Rule C(6). As a preliminary matter, he asserts that the district judge confused the concept of standing--without which he is barred from maintaining his civil action--with the concept of disentitlement, which is not jurisdictional. See Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S. Ct. 498, 498-99, 24 L. Ed. 2d 586 (1970). We do not view the district court's action as confusing these two concepts. Rather, it dealt with them disjunctively, stating that Eng's failure to file a claim and answer timely deprive him of standing to contest the forfeiture proceeding, and that his active opposition to extradition disentitles him, in any event, from being heard in the civil proceedings even to request a stay. See 745 F. Supp. at 122.
The principal question before us is whether the doctrine of disentitlement--that holds a person who is a fugitive from justice may not use the resources of the civil legal system while disregarding its lawful orders in a related criminal action--should bar appellant from participating in the civil forfeiture proceedings. Appellant asserts that he is not a fugitive from justice and that, even if he is, the doctrine should not apply in his case.
Eng declares in his brief that he is a fugitive, if at all, only "by the barest of legal fictions." To the contrary, that Eng is a fugitive rests on sound, legal footing, not on fictions. In United States v. Catino, 735 F.2d 718 (2d Cir.), cert. denied, 469 U.S. 855, 105 S. Ct. 180, 83 L. Ed. 2d 114 (1984), the defendant, an American, was convicted and sentenced for narcotics trafficking in the Southern District of New York, but fled to France prior to his surrender date. While abroad he was arrested and held to answer charges under French law, pursuant to a provisional arrest warrant issued at the request of the United States. Catino resisted United States efforts to extradite him. During the pendency of the extradition proceedings, he was convicted on the French charges and sentenced to five years in prison. The French government then opposed the United States' extradition request on the ground that Catino had already been convicted in France for the same criminal conduct alleged against him by the United States. Extradition was subsequently denied. After serving his sentence in France, Catino was expelled from that country and returned to the United States where he was promptly arrested. Id. 735 F.2d at 719-21.
Catino contended, in his Southern District trial on charges of bail jumping and securing a passport under a false name, that the statute of limitations barred the government from prosecuting him. The prosecution argued that the statute of limitations was tolled on these charges pursuant to 18 U.S.C. § 3290 because Catino was a fugitive during the relevant period. Fleeing from justice does not, as the words literally connote, mean a person "on the run." One may flee though confined in prison in another jurisdiction. Fleeing from justice is not always a physical act; it may be a state of mind. When a person purposely leaves the jurisdiction or decides not to return to it, in order to avoid prosecution, he is a fugitive. See 735 F.2d at 722. Thus, a defendant with notice of criminal charges who actively resists returning from abroad to face those charges is a fugitive from justice, even when he has no control over his physical movements because of being imprisoned in a foreign country. See id.; accord United States v. Marshall, 856 F.2d 896, 900 (7th Cir. 1988); Schuster v. United States, 765 F.2d 1047, 1050 (11th Cir. 1985); United States v. One Lot of U.S. Currency Totalling $506,537, 628 F. Supp. 1473, 1475-76 (S.D. Fla. 1986).
Since his Hong Kong arrest in August 1989, Eng has resisted extradition and has refused to sign an affidavit stating that he wished to return to the United States to contest the civil forfeiture action. In addition, in June 1990 his counsel advised the trial court that if Eng successfully defeated extradition he would in all likelihood not return to the United States voluntarily. Plainly, appellant has not done all within his power to return to this country; rather, he has done everything possible to resist returning. Consequently, Eng was correctly held to be a fugitive from justice.
We turn now to discuss the doctrine of disentitlement. In Molinaro, 396 U.S. 365, 90 S. Ct. at 498, the criminal defendant had escaped while his direct appeal was pending before the Supreme Court, which thereupon summarily and unconditionally dismissed the appeal, observing that a court should not deal with the merits of an appeal while the defendant who seeks review of the conviction deliberately absconds from the legal restraints imposed as a result of the same conviction. Such flaunting of the legal system disentitles that defendant from calling upon the system's resources to determine his claims. Id. at 366, 90 S. Ct. at 498-99; see also United States v. Baccollo, 725 F.2d 170, 171 (2d Cir. 1983). The disentitlement doctrine, which may be invoked at the discretion of the court, is grounded on the impropriety of permitting a fugitive to pursue a claim in federal court where he might accrue a benefit, while at the same time avoiding an action of the same court that might sanction him. See 396 U.S. at 366, 90 S. Ct. at 498-99.
The Supreme Court has never extended Molinaro to civil matters relating to a criminal fugitive, though this and other circuits have done so on a number of occasions. See, e.g., United States v. $45,940 in United States Currency, 739 F.2d 792, 797-98 (2d Cir. 1984); United States v. One Parcel of Real Estate at 7707 S.W. 74th Lane, Miami, Dade County, Florida, 868 F.2d 1214, 1216-17 (11th Cir. 1989); United States v. $129,374 in United States Currency, 769 F.2d 583, 587 (9th Cir. 1985), cert. denied sub nom. Geiger, Conservator of the Estate of Geiger v. United States, 474 U.S. 1086, 106 S. Ct. 863, 88 L. Ed. 2d 901 (1986); Doyle v. United States Dep't of Justice, 668 F.2d 1365 (D.C. Cir. 1981), cert. denied, 455 U.S. 1002, 102 S. Ct. 1636, 71 L. Ed. 2d 870 (1982); Broadway v. City of Montgomery, Alabama, 530 F.2d 657, 659 (5th Cir. 1976); United States ex rel. Bailey v. United States Commanding Officer, 496 F.2d 324, 326 (1st Cir. 1974). The only holding arguably to the contrary is United States v. $83,320 in United States Currency, 682 F.2d 573 (6th Cir. 1982). The primary concern of the Sixth Circuit in that case, as the district court noted, was that if the disentitlement doctrine is applied too broadly to in rem proceedings it might jeopardize the rights of others who, in addition to the fugitive, seek to file claims. See 682 F.2d at 576; 745 F. Supp. at 122. That danger does not exist in the case at hand where the trial court solicited claims from third parties. Accord $129,374, 769 F.2d at 589 (rejecting $83,320 's concern where notice is provided to other interested parties); $45,940, 739 F.2d at 797-98.
In $45,940 in United States Currency, the criminal defendant/civil claimant, McKay, was arrested, jailed, and deported for making an illegal entry into the United States from Canada. At the time he was arrested, he was carrying $45,940 in currency, which was seized. He was subsequently indicted for making a false statement to the U.S. Customs Service regarding the amount of currency he possessed when he crossed the border. Later, he filed a verified claim to the currency and answered the government's in rem complaint--seeking forfeiture of the currency--but refused to appear at his arraignment on the related criminal charge. The government contended that because McKay refused to leave Canada for his arraignment here, he was a fugitive and disentitled from contesting the civil forfeiture action. McKay's response was the government made no attempt to extradite him, and he had previously been deported from this country and barred from reentering for one year following his deportation. He asserted, as a consequence, he was not a fugitive and was entitled to participate in the forfeiture action.
We rejected McKay's arguments. The burden, we noted, was on the person who has absented himself from the United States--voluntarily or not--to seek readmission, even for the limited purpose of appearing at his arraignment. 739 F.2d at 795-96. Thus, we held McKay was a fugitive from justice who had waived his right to due process in the civil forfeiture proceeding. Id. at 798. See also, e.g., $129,374, 769 F.2d at 587-88.
Eng makes two substantially similar arguments as to why the doctrine should not apply in this case. Neither has merit. First, he proposes that this case is distinguishable from $45,940 in United States Currency because, unlike the claimant in that case, Eng did not initiate the proceedings below by filing a claim seeking return of his seized property. In other words, appellant's argument is that because it is the government that has initiated the proceedings by bringing the forfeiture action and seeking extradition, it is not fair to say that appellant is seeking to have it both ways by using the resources of the United States courts only when it is to his advantage. Appellant argues he was forced into this position by the government's action and should not be punished by the application of the disentitlement doctrine.
Who initiates the proceedings is irrelevant under Catino and $45,940. Both cases stated that when a person actively resists extradition, or refuses to appear at his arraignment, he has constructively fled the United States and thus is a fugitive. See 739 F.2d at 796; 735 F.2d at 722-23. So long as Eng continues to resist extradition, he has constructively fled the country and remains a fugitive subject to the disentitlement doctrine regardless of which party initiates the civil proceeding. See One Parcel of Real Estate, 868 F.2d at 1217; cf. $129,374, 769 F.2d at 589 (requirements for application of disentitlement doctrine satisfied where criminal defendant had notice of forfeiture proceedings and elected to flee the court's jurisdiction).
Second, and in a similar vein, Eng argues that, unlike McKay in $45,940, he is in a "defensive posture" in the civil forfeiture action in this case. Eng's motion filed in the district court undercuts that argument because it seeks affirmatively to litigate his as yet unidentified "interest" in the defendant properties and specifically requested the district court (1) summarily to release the properties pursuant to the Admiralty and Maritime Rules, (2) dismiss all the government claims against properties located outside the Eastern District of New York, and (3) stay the civil action pending the conclusion of the criminal proceedings. These motion papers definitively demonstrate that Eng has done more than lay supine in the face of government's efforts.
Even were appellant in a purely defensive posture procedurally, such is not a relevant consideration for purposes of the disentitlement doctrine. The doctrine operates as a waiver by a fugitive of his due process rights in related civil forfeiture proceedings. See $45,940, 739 F.2d at 798. Appellant by his own actions as a fugitive disentitles himself from raising an objection to the forfeiture proceeding. See One Parcel of Real Estate, 868 F.2d at 1217.
Consequently, Eng's arguments as to which party initiated the action and what his procedural posture is in that action have no bearing on the applicability of the disentitlement doctrine once his status as a fugitive and the relatedness of the property to the criminal activity are established.
The First Circuit's decision in United States v. Pole No. 3172, Hopkinton, 852 F.2d 636 (1st Cir. 1988) is not to the contrary. There the court concluded that the disentitlement doctrine should not be applied and that the defendant should be permitted to maintain a claim to property seized by the government. Although the court stated that the defendant, though technically a claimant, could not "be deemed to be in the customary role of a party invoking the aid of a court to vindicate rights asserted against another," id. at 643 (quoting Societe Internationale v. Rogers, 357 U.S. 197, 210, 78 S. Ct. 1087, 1094-95, 2 L. Ed. 2d 1255 (1958)), we do not read the decision to apply the doctrine as turning on the defendant's procedural posture in the case. Rather, Pole No. 3172 merely held that the disentitlement doctrine is not applicable where the defendant's status as a fugitive is not sufficiently related to the civil forfeiture and the defendant had no notice of the criminal proceeding at which he failed to appear. 852 F.2d at 644. Neither of these factors are present in the instant matter. Accord, e.g., One Parcel of Real Estate, 868 F.2d at 1216 (dismissing claim to property brought by fugitive where " [t]he in rem forfeiture action against the defendant real property is unquestionably related to the appellant's indictment for drug trafficking").
In its complaint and amended verified complaint in rem, the government has detailed the transactions through which Johnny Eng purchased the subject defendant properties. It has alleged that the defendants were purchased with proceeds of narcotics transactions engaged in by Eng. Hence, the civil forfeiture action clearly involves property related to the criminal indictment against appellant and--due to Eng's fugitive status--satisfies the requirements of the disentitlement doctrine.
Eng next argues that, even if the disentitlement doctrine is applicable, the district court misinterpreted its nature and scope by failing to realize that its application is discretionary. Appellant insists the district court refused to exercise its discretion by default when it ruled in the government's favor. Our review of the record shows that counsel for Eng most ably argued the discretionary nature of the doctrine. The trial court was therefore well aware that it had discretion to hear Eng, and by declaring Eng disentitled, it used language indicating a discretionary decision: "Eng is a fugitive from justice, and this court will not stay a civil case pending the outcome of a criminal matter in which he hopes never to appear." 745 F. Supp. at 120. Judge Raggi did not say she had no power to hear Eng, but stated instead she had chosen not to hear him. Appellant may decide to waive extradition and return to this country to face the charges against him. In the meanwhile his refusal to do so disentitles him from litigating in federal court his civil claim to property connected to these criminal charges.
Eng also argues that his assertion of rights traditionally associated with due process under the terms of the United States extradition treaty with Hong Kong converts his attempt to fight extradition into an attempt to assert affirmative constitutional claims, thereby making this the sort of case in which a court should exercise its discretion to hear the fugitive's case. We disagree that the case is either unusual or that defendant's invocation of constitutional rights should tip the scales in favor of allowing his case to be heard. Appellant is entitled to all of his due process rights once he returns to stand trial. None of his constitutional rights are given up by waiving extradition. His remedy as a fugitive is to forego that status and promptly avail himself of his right to a speedy and public trial guaranteed him under the Constitution. See United States v. Weinstein, 511 F.2d 622, 629 (2d Cir. 1975).
We address Eng's remaining assertion that he adequately met statutory standing requirements. The provision governing the seizure of property subject to civil forfeiture, 21 U.S.C. § 881(b) (1988), provides that property may be seized "upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims." Admiralty Rule C(6) states that a claimant asserting rights in property that has been seized and that is the subject of a forfeiture action in rem must file a claim within ten days after process has been executed or within such additional time as the court may allow. The filing of a verified claim is an essential element in establishing standing to challenge a forfeiture under Rule C(6). See Mercado, 873 F.2d at 645; United States v. United States Currency in the Amount of $2,857.00, 754 F.2d 208, 213 (7th Cir. 1985).
Eng never filed a claim under Admiralty Rule C(6). Instead, he filed a motion for an order to show cause why the properties should not be summarily released from arrest. He now argues that the government did not provide him with notice of the forfeiture action until eight days after the period for filing a verified claim had expired. Yet, he filed his motion for an order to show cause on March 15, 1990, the very same date on which he contends the time to file a verified claim expired. It follows logically that actual notice of the forfeiture action was given within sufficient time in order for Eng to have filed a verified claim, had he so desired. Moreover, compliance with Rule C(6) is not complicated, and the trial court might well have been inclined to allow appellant to file an untimely claim, particularly in view of his incarceration in Hong Kong.
Claiming that he is nonetheless excused from compliance with the statutorily mandated process, he relies on United States v. Premises and Real Property at 4492 South Livonia Road, Livonia, New York, 889 F.2d 1258 (2d Cir. 1989). There we held that a claimant who demonstrates sufficient interest in the property by filing motion papers with the court may be excused from technical noncompliance with the rules governing the filing of claims. But Livonia Road does not control here. Claimant there made the requisite showing that he possessed an interest in the subject property. Quite the contrary, Eng's interest in the property subject to the civil in rem action is indefinite and undetermined, described by his counsel only as his "interest, if any, in the defendant properties."
Appellant also declares that he did not file a verified claim, and did not move for leave of court to file an untimely claim, because filing a verified claim would have waived the motion for an order to show cause, citing Cactus Pipe & Supply Co., Inc. v. M/V Montmartre, 756 F.2d 1103 (5th Cir. 1985). Cactus Pipe stands for the proposition that the filing of a claim by the owner of property confers in rem jurisdiction over the property because the owner's unconditional claim constitutes an appearance on its behalf. Id. at 1108, 1110. We fail to see how this supports appellant's present argument that filing a claim would have waived the motion for an order to show cause. Further, Cactus Pipe stated that the filing of a claim without any jurisdictional objection within or prior to the pleading constituted an appearance on the part of the claimant. Id. at 1110. Nothing said in that case prohibited Eng from bringing his motion for an order to show cause or caused him to waive it if he chose to file a subsequent claim. In any event, before he could make such a motion, it was necessary for him to file a verified complaint in the forfeiture action in order to establish his standing in that case. Having failed to file the verified claim, Eng has no statutory standing under Rule C(6) to challenge the forfeiture of the property.
Because Eng is disentitled from participating in the civil forfeiture action, and lacks as well the requisite statutory standing, it is unnecessary for us to address his argument that the district court lacked jurisdiction over the defendant property not within the Eastern District of New York.
The order dated August 21, 1990, and the resulting default judgment in favor of the United States entered by the Clerk of the Court on August 30, 1990 are, in all respects, affirmed.


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Williams, Circuit Judge: This appeal puts in question the relationship between an en banc decision of this court and two recent Supreme Court cases. The latter require a prisoner to succeed in a habeas action before bringing a claim that challenges, even indirectly, the duration of his custody--for example a damages claim for due process violations made in the course of a decision revoking good time credit. See Edwards v. Balisok, 520 U.S. 641 (1997). Balisok has been read as mandating the use of habeas only when the claim, if successful, will inevitably necessitate invalidation of a decision creating, extending, or refusing to curtail custody. But in Chatman-Bey v. Thornburgh, 864 F.2d 804 (D.C. Cir. 1988), we found that habeas was the exclusive remedy even where a claim's impact on custody was only probabilistic. Chatman- Bey itself involved a decision on parole eligibility, a necessary but not sufficient step toward the actual grant of parole. Concluding that there is no inescapable conflict between Chatman-Bey and the later Supreme Court decisions, we adhere to Chatman-Bey: for a federal prisoner, habeas is indeed exclusive even when a non-habeas claim would have a merely probabilistic impact on the duration of custody.
Appellant Kevin Razzoli is a federal prisoner serving a sentence for attempted murder. He challenges an order by the district court dismissing his claims against the Federal Bureau of Prisons ("BOP") and the United States Parole Commission for declaratory relief and damages under the Privacy Act, 5 U.S.C. s 552a, and the Freedom of Informa- tion Act, 5 U.S.C. s 552 ("FOIA").
Razzoli filed a pro se complaint in district court here, alleging that the BOP staged the incident on which the actions of the Disciplinary Committee and Parole Commission were based. Although the complaint does not highlight the difference, it suggests that the Disciplinary Committee found him guilty only of possession and that the Parole Commission found him guilty of possession with intent to distribute. It further alleges that the Parole Commission conspired with the BOP and knowingly used false information against Razzo- li. The complaint says that Razzoli never received a copy of any FBI report and suggests that the report must not have supported the Parole Commission's determination.
the conviction or sentence has previously been invalidated." Balisok, 520 U.S. at 643 (quoting Heck, 512 U.S. at 487).
We review the district court's dismissal for failure to state a claim de novo. See Davis v. District of Columbia, 158 F.3d 1342, 1348 (D.C. Cir. 1998). Dismissal under Rule 12(b)(6) is proper if, taking all the material allegations of the complaint as admitted and construing them in plaintiff's favor, we find that he has failed to allege each of the material elements of his cause of action. See Taylor v. Federal Deposit Insurance Corp., 132 F.3d 753, 761 (D.C. Cir. 1997); see also Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). In addition, we are bound to read the filings of a pro se litigant liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999). The application of Preiser, Heck, and Balisok complicates our task, for we must find allegations that are not only sufficient to make out claims under the statutes, but that also do not trigger the habeas-channeling rule. We appointed amicus curiae to argue the issues for appellant.
The theory of Razzoli's Privacy Act claim is that BOP and the Parole Commission violated 5 U.S.C. s 552a(e)(5) by maintaining in their files and using a false record, the report of the drug possession incident, even though they knew it to be false. We read the Privacy Act part of the complaint as having two dimensions, one clearly running afoul of Balisok, the other not so clearly.
What clearly runs afoul of Balisok is his apparent claim in relation to the recision of good time. If BOP knowingly preserved and acted upon a totally invented record of drug possession, plainly the recision of good time would have to be overturned, thus accelerating Razzoli's release. Indeed, Raz- zoli has already brought such a claim in the Middle District of Pennsylvania in the form of an action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Third Circuit has found it barred under the Balisok doctrine. See Razzoli v. Swinson, No. 97-7558, slip op. at 4-6 (3rd Cir. June 1, 2000).
But the amicus contends that Razzoli frames a second attack that implicates only the determination by the Parole Commission to postpone his parole eligibility. Under this reading, Razzoli is arguing that the Parole Commission deci- sion was based on addtional inaccuracies in his record--the absence of the FBI report and the addition of "intent to distribute" to the possesion charge. The government resists this interpretation, but we think it within the range of plausi- ble interpretations given the alleged absence of the FBI report from the record, the complaint's explicit attacks on the decision of the Parole Commission, and the distinction (slight- ly submerged, to be sure) between the Disciplinary Commit- tee's charge of possession and the Parole Commission's find- ing of possession with intent to distribute.
The Supreme Court's trilogy addressing the relation be- tween petitions for habeas corpus and other prisoner claims began with Preiser v. Rodriguez, 411 U.S. 475 (1973). State inmates who had been deprived of good time credit in prison disciplinary proceedings brought actions under 42 U.S.C. s 1983 seeking injunctive relief to compel restoration of the credit. The Court saw "the essence" and "traditional func- tion" of habeas as being "to secure release from illegal custody." Id. at 484. The Court found that an attack on revocation of good time qualified as an attempt to secure such release. Such an attack is "just as close to the core of habeas corpus as an attack on the prisoner's conviction, for it goes directly to the constitutionality of his physical confinement itself and seeks either immediate release from that confine- ment or the shortening of its duration." Id. at 489. More critically, the Court found that the habeas remedy was exclu- sive. Comparing the general language of s 1983 with the specificity of the habeas statute and focusing on Congress's clear intent to assure exhaustion of state remedies in the latter, it found a congressional intent to provide only one remedy for attacks on physical confinement. Id. at 489-92.
conviction." Id. at 481-82. The Court went on to hold that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a s 1983 plaintiff must prove that the con- viction or sentence has been [overturned]." Id. at 486-87. Finally, Balisok extended Preiser and Heck to cover a s 1983 damages action for procedural violations allegedly committed in a prison disciplinary hearing that deprived the plaintiff prisoner of good time credits. The Court rejected any dis- tinction between procedural and substantive claims, saying that any such distinction "disregards the possibility, clearly envisioned by Heck, that the nature of the challenge to the procedures could be such as necessarily to imply the invalidi- ty of the judgment." Id. at 645.
In each of the cases of the trilogy, the plaintiff's establish- ment of his claim would itself have been sufficient to entitle him to earlier release--subject, at least in the Balisok case, to the possibility of renewed revocation of the good time credit in a new hearing untainted by constitutional error. See Balisok, 520 U.S. at 647. But in 1988 this court read Preiser to require habeas for a federal prisoner's attack on a parole eligibility decision, reversal of which would merely give him a chance at earlier parole. Chatman-Bey v. Thornburgh, 864 F.2d 804 (D.C. Cir. 1988). We recognized both of the case's arguable distinctions from Preiser: first that Chatman-Bey was a federal prisoner and second that success on his stated claim would not lead either to immediate release or to a definite reduction in sentence. Id. at 808-10. We also rejected both, relying on the Preiser Court's finding of a congressional determination that habeas be the exclusive means for challenging the fact or duration of custody. Id. at 808 n.4 ("in the most practical sense, parole eligibility 'impli- cates' the duration of confinement"). Application of Chatman-Bey here funnels plaintiff's claim into habeas.
an adverse parole eligibility decision. Instead, we saw it as barring a s 1983 claim "only when, if successful, it would 'necessarily imply,' or automatically result in, a speedier release from prison." Id. at 1056. We distinguished Chat- man-Bey on the ground that it involved a federal prisoner, and said that we need not consider whether it had any "continuing vitality after Heck and Balisok." Id. at 1057. Now we must.
course, every bit as applicable here as in Chatman-Bey itself, but had little or no relevance to Anyanwutaku; even if state prisoners with probabilistic claims are relieved of the stric- tures of Balisok, the District of Columbia would generally not be a possible site for litigation.
Finding Chatman-Bey alive and at worst only modestly ailing, we conclude that Razzoli's Privacy Act claim--not only in regard to the good time decision but also in regard to parole eligibility--is not cognizable. In one respect, however, the district court erred on this claim: it should have been dismissed without prejudice. If Razzoli is successful in over- turning the Disciplinary Committee and Parole Committee actions through a petition for habeas, he should be allowed to bring his Privacy Act claim at that time. See Fottler v. United States, 73 F.3d 1064, 1065-66 (10th Cir. 1996).
There remains Razzoli's FOIA claim. The district court concluded that not only the Privacy Act but also the FOIA claim was barred by Heck and Balisok. We do not see the logic. A FOIA claim wins, generally speaking, if the plaintiff has properly requested the document from the agency and no exemption applies. Razzoli evidently seeks the supposedly exonerating FBI report. Of course that report could possibly be helpful in both his good time and his parole eligibility claims. But a judicial finding that some agency must deliver this report to Razzoli would not itself establish some neces- sary element of those claims; so Balisok would not apply even under the comparatively broad reading that prevails in the Seventh Circuit. See Clayton-EL v. Fisher, 96 F.3d at 242.
novo." See id. (citing Securities and Exchange Comm'n v. Chenery Corp., 318 U.S. 80 (1943)).
Here, despite the efforts of the amicus to stretch our imaginations, we find little more in the complaint than a bald reference to the statute. Appellant mentions in passing that he did not receive the FBI report, but makes no reference to requests for this document. He later claims that he "has exhausted all other remedies available to him to attempt to correct the record, but was denied," but in the context of the complaint this seems to be a reference to the entire record of his cocaine possession. Complaint at 4, Razzoli v. Federal Bureau of Prisons, No. 99 CV 1711 (D.D.C. June 27, 1999) Even giving the pro se plaintiff the benefit of every reason- able doubt, we cannot make out a FOIA claim from this complaint.
The only question remaining is whether sua sponte dismiss- al without leave to amend was appropriate. The Prisoner Litigation Reform Act of 1995 not only allows but requires a district court to dismiss a prisoner's claim before the defen- dant answers if it finds that the complaint fails to state a claim. See 28 U.S.C. 1915A(b)(1). Even prior to the enact- ment of that statute, this court had approved of sua sponte dismissals for failure to state a claim in some circumstances. See Baker v. Director, United States Parole Comm'n, 916 F.2d 725, 726 (D.C. Cir. 1990) (per curiam). But nothing has altered our long-standing rule that a sua sponte dismissal for failure to state a claim without leave to amend is reversible error unless "the claimant cannot possibly win relief." See Davis v. District of Columbia, 158 F.3d 1342, 1349 (D.C. Cir. 1998) (quoting Baker, 916 F.2d at 726). This will be the case either when "the facts alleged affirmatively preclude relief, or because, even though plaintiff makes clear that he has facts to add to his complaint, he would not have a claim upon which relief could be granted even with those facts." Id. Neither of these formulations applies to Razzoli. Accordingly, al- though we agree with the judgment that Razzoli failed to state a claim, we must remand and order the district court to dismiss the complaint with leave to amend.

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