author: TORRUELLA, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Leoner MARTÍNEZ-LANTIGUA, Defendant, Appellant.
    No. 15-2169
    United States Court of Appeals, First Circuit.
    May 23, 2017

      Víctor A. Ramos-Rodríguez, Carolina, PR, •with whom Wilfredo Díaz-Narváez, San Juan, PR, were on brief, for appellant.
    Mainon A. Schwartz, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, •and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
    Before HOWARD, Chief Judge, TORRUELLA and BARRON, Circuit Judges.
   TORRUELLA, Circuit Judge.

Following a trial, Leoner Martinez-Lan-tigua (“Martinez”) was found guilty of conspiracy to possess with intent to distribute and possession with intent to distribute at least 15 kilograms but less than 50 kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Martinez was sentenced to 121 months of imprisonment. Martinez appeals, contending that the evidence was insufficient for his conspiracy conviction and there were errors at his trial. Because the entire drug deal was captured on video and audio—which show Martinez inspecting the drugs with his own hands—we find that there was sufficient evidence to convict Martinez. We also find Martinez’s claims that there were errors at his trial to be without merit. We therefore affirm.

I. Background

On July 6, 2014, a confidential informant told Homeland Security Investigations (“HSI”) agents that a money laundering and drug trafficking organization was seeking assistance to transport cocaine from St. Thomas to Puerto Rico. That same day, an HSI undercover agent (the “Agent”), acting as a facilitator, called the organization and coordinated a meeting to discuss the smuggling venture.

On July 7, the Agent met with Oscar De la Cruz (“De la Cruz”) and Pedro Wipp-Kelley (“Wipp-Kelley”) in Piñones, Puerto Rico, to discuss the venture and agreed that, in exchange for transporting the narcotics, they would pay the Agent $1,000 per kilogram of cocaine in transportation fees, plus $5,000 in fuel and travel expenses. During a series of recorded calls and meetings, they ultimately agreed to have the Agent transport 48 kilograms of cocaine and provided him with a Blackberry and the phone number of Erasmo Martinez-Trinidad (“Martinez-Trinidad”), who had the narcotics in St. Thomas. The Agent travelled to St. Thomas and successfully arranged the delivery of the narcotics.

The Agent called Wipp-Kelley on July 12 to arrange the location for the exchange. The exchange took place at the Martínez Nadal Train Station parking lot, in San Juan, Puerto Rico, and was recorded on video; accompanying audio was provided through a body wire that the Agent was wearing.

The controlled delivery involved four cars. Wipp-Kelley messaged the Agent and informed him that Wipp-Kelley would be driving a grey Nissan, and that he would be with somebody (who was later identified as Carlos Carmona). Wipp-Kelley also informed the Agent that a second vehicle, a white Altima, would be involved in the transaction. It would later turn out that Martinez would be driving this Altima, with his friend Ramón Coplin in the passenger seat. Another undercover agent would drive a small SUV to the transaction with the Agent in the passenger seat. The sham cocaine would be located in a separate red undercover vehicle (the agents naturally did not bring the real cocaine to the transaction). The money would be put into the small SUV, and Martinez would drive away in the red undercover vehicle that contained the narcotics.

The transaction followed this plan (except, of course, that the conspirators were arrested before they could drive away). The Agent got out of the SUV and approached Wipp-Kelley’s vehicle, the grey Nissan. Wipp-Kelley told the Agent that the bag containing the $43,000 was in the rear seat of this grey Nissan. After the Agent inspected the bag of money and confirmed its contents, Carmona placed it in the small SUV. The Agent then approached the white Altima. Martinez was in the driver’s seat, and Coplin in the passenger seat. The Agent asked Martinez whether he was going to drive the red vehicle and Martinez nodded his head. The Agent asked Martinez whether anyone was going “to check that,” referring to the sham narcotics in the vehicle. Martinez replied “[o]h, okay.” Both Martinez and Coplin approached the Agent’s vehicle to inspect the bags and the Agent opened the trunk. The Agent opened the bag containing the bricks of sham cocaine to show them to Martinez. Martinez looked into the trunk, reached into the trunk, and touched the sham narcotics. After Martinez had completed this inspection of the sham cocaine, the Agent closed the trunk of the vehicle, which signaled federal agents to arrest the conspirators.

After the arrest, Martinez waived his Miranda rights at the police station and admitted that he was hired to move the vehicle containing the bags from Point A to Point B for $1,000, and that he knew that he was to move something illegal because of the amount of money that he was offered.

. Martinez was tried from May 11 to May 19, 2015. He was found guilty of conspiracy to possess with intent to distribute and possession with intent to distribute at least 15 but less than 50 kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Martinez was sentenced to 121 months of imprisonment. Martinez appeals, contending that the evidence was insufficient for his conviction and his trial was unfair.

II. Discussion

A. Sufficiency of the Evidence

Martinez’s principal argument on appeal is that the evidence was insufficient for his conviction. “We review preserved challenges to the sufficiency of the evidence de novo.” United States v. Maymi-Maysonet, 812 F.3d 233, 236 (1st Cir. 2016) (citation omitted), cert. denied, — U.S. -, 137 S.Ct. 100, 196 L.Ed.2d 84 (2016). On sufficiency of evidence review, this Court “must view the evidence, both direct and circumstantial, in the light most favorable to the prosecution, and decide whether that evidence, including all plausible inferences drawn therefrom, would allow a rational factfinder to conclude beyond a reasonable doubt that the defendant committed the charged crime.” Id. (citation omitted). “Given this difficult standard, defendants raising this claim are ‘rarely suc-céssful....’” United States v. Rivera-Ruperto, 846 F.3d 417, 432 (1st Cir. 2017) (quoting United States v. Moran, 984 F.2d 1299, 1300 (1st Cir. 1993)). For conspiracies such as the one Martinez was convicted for, “the government ‘need only prove that the defendant had knowledge that he was dealing with a controlled substance, not that he had knowledge of the specific controlled substance.’ ” Id. at 433 (quoting United States v. Woods, 210 F.3d 70, 77 (1st Cir. 2000)).

Martinez concedes that he knew that he was doing something illegal, and he concedes that he was paid $ 1,000 for doing so. Martinez, however, contends that he did not know that he was part of a criminal conspiracy, or that the conspiracy involved illegal drugs. The video recording belies Martinez’s arguments. He was caught on tape arriving in the white Altima, the car that Wipp-Kelley had said he would arrive in, at the exact location and at the exact time that the drug deal was to take place. Not only did he look into the trunk of the undercover vehicle—with the unzipped bag of drugs inside it—but he also touched the bricks of sham cocaine with his hands. Only after Martinez had completed this inspection did the Agent close the trunk, which was the signal for the police to appear. We have no difficulty in finding that such evidence is sufficient to allow a rational fact-finder to conclude beyond a reasonable doubt that Martinez knew not only that he was part of a conspiracy to do something illegal, but also that the conspiracy involved a narcotics deal.

B. Other Alleged Trial Irregularities

Martinez raises a number of additional issues, none of which are of any avail to him.

According to Martinez, the transcript of the audio that accompanied the surveillance video was not properly authenticated. The transcript was authenticated by the Agent’s testimony on the third day of the trial. “Because authentication rulings are necessarily fact-specific, we review such rulings only for mistake of law or abuse of discretion.” United States v. Alicea-Cardoza, 132 F.3d 1, 4 (1st Cir. 1997) (citation omitted). This Court has “discern[ed] no problem with” the authentication of a transcript by an officer who was personally involved in recording the transmissions coming from an electronic transmitting device worn by an informant during a drug transaction and who “compared the transcript to the tape recording and testified that the transcript fairly and accurately represented the conversation on the tape,” even though the officer did not prepare the transcript. United States v. Anderson, 452 F.3d 66, 77 (1st Cir. 2006). Indeed, the officer is “in an even better position” to authenticate the transcript because “he himself had listened to the conversation ... while monitoring the controlled [transaction].” Id. And “if the appellant was so concerned about the authenticity of the government’s transcript, he could have submitted his own.” Id. Martinez never submitted his own transcript. Rather, on the first day of trial, he agreed with the government to use the transcript and to let the Agent identify the speaker.

Martinez also seeks to convince this court that the trial testimony of a firearms and ammunition expert was not relevant and caused a prejudicial effect. The expert testified that two Smith & Wesson pistols seized from Martinez’s co-conspirators were both functioning firearms, and also as to such basic matters as their caliber and how many bullets their magazines could hold. Even assuming that Martinez preserved this issue, and we would therefore review for abuse of discretion, we fail to discern any such abuse here. See United States v. Corey, 207 F.3d 84, 88 (1st Cir. 2000); United States v. Sebaggala, 256 F.3d 59, 65 (1st Cir. 2001) (‘When the issue is whether expert testimony will (or will not) materially assist a jury ... trial courts enjoy considerable latitude in deciding whether to admit or exclude it.”). Firearms are a common tool of the drug trade. Firearms—and expert testimony about them—can therefore be relevant circumstantial evidence towards establishing the existence of a drug conspiracy. See United States v. Rivera Calderón, 578 F.3d 78, 94 (1st Cir. 2009).

Martinez next takes issue with jury instruction number 13, because, so he claims, it did not contain the third element of a conspiracy charge, namely that “the defendant knowingly and voluntarily participated in the conspiracy.” United States v. Maryea, 704 F.3d 55, 73 (1st Cir. 2013). Although jury instruction 13 did not explicitly state that “voluntary participation” was the third element of the offense, it did state that the jury needed to determine whether Martinez “willfully joined in the agreement.” The instruction clarified: “To act ‘willfully’ means to act voluntarily and intelligently and with the specific intent that the underlying crime be committed.” This instruction was sufficient. See United States v. Allen, 670 F.3d 12, 17 (1st Cir. 2012) (holding identical language to be sufficient conspiracy instruction under 18 U.S.C. § 371).

Finally, Martinez takes issue with jury instruction number 16, because he believes that a jury instruction for willful blindness was not warranted. Such an instruction is appropriate if: “[1] a defendant claims a lack of knowledge, [2] the facts suggest a conscious course of deliberate ignorance, and [3] the instruction, taken as a whole, cannot be misunderstood as mandating an inference of knowledge.” United States v. Epstein, 426 F.3d 431, 440 (1st Cir. 2005) (alterations in original) (citation omitted). These three requirements are present here: (1) Martinez claimed that he lacked knowledge of the conspiracy— indeed, he presses this argument again on appeal; (2) Martinez knew that he was hired to do something illegal, but he argued below—and presses this on appeal as well—that he did not know what that illegal conduct was, which suggests that he remained deliberately ignorant; (3) the jury was instructed that “you may infer [Martinez] had knowledge of a fact if you find that he deliberately closed [his] eyes to a fact that otherwise would have been obvious to [him].” (emphasis added); “[i]t is entirely up to you to determine whether he deliberately closed his eyes to the fact and, if so, what inference, if any, should be drawn;” and “mere negligence or mistake in failing to learn the fact is not sufficient. There must be a deliberate effort to remain ignorant.”

III. Conclusion

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

Affirmed.


source: Caselaw Access Project

author: JOHN M. WALKER, JR., Circuit Judge:

license: Public Domain

text:
    Paul SPAK, Plaintiff-Appellant, v. Shane PHILLIPS, Defendant-Appellee.
    No. 15-3525-cv
    August Term, 2016
    United States Court of Appeals, Second Circuit.
    Argued: September 27, 2016
    Decided: May 22, 2017

      John R. Williams, John R. Williams and Associates, LLC, New Haven, CT, for Plaintiff-Appellant.
    James N. Tallberg (Dennis M. Durao, on the brief), Karsten & Tallberg, LLC, Rocky Hill, CT, for Defendant-Appellee.
    Before: WALKER and CABRANES, Circuit Judges, and BERMAN, District Judge.

       Judge Richard M. Berman, United States District Judge for the Southern District of New York, sitting by designation.

   JOHN M. WALKER, JR., Circuit Judge:

Plaintiff-appellant Paul Spak appeals a decision of the United States District Court for the District of Connecticut (Jeffrey A. Meyer, J.) granting summary judgment in favor of the defendant-appellee Shane Phillips, an officer with the Plain-ville Police Department in Plainville, Connecticut. In 2010, Spak was arrested by Phillips and charged under Conn. Gen. Stat. § 53a-155 with destroying evidence related to the alleged discharge of illegal fireworks. The prosecuting attorney subsequently dismissed those charges by entering a nolle prosequi. More than three years after the entry of the nolle, Spak brought suit against Phillips for malicious prosecution in violation of the Fourth Amendment, under 42 U.S.C. § 1983. The district court held that Spak’s malicious prosecution claim accrued when the nolle prosequi was entered, and that as a result his suit was time-barred. On appeal, Spak contends that his claim did not accrue when the prosecuting attorney nolled his case, but thirteen months later when all public records of his prosecution were erased pursuant to a Connecticut record-keeping statute. We conclude that Spak’s claim accrued when the charges against him were nolled. We therefore AFFIRM the judgment of the district court.

BACKGROUND

The relevant facts in this appeal are not in dispute. On June 12, 2010, Phillips responded to a complaint of fireworks being discharged in Spak’s neighborhood. When he arrived to investigate, he observed Spak burning the remnants of fireworks in a backyard fire pit, in what Phillips perceived as an attempt to destroy evidence. The following day, Phillips submitted a sworn affidavit to the Connecticut Superior Court seeking a warrant to arrest Spak on, inter alia, charges of tampering with or fabricating evidence. Based on Phillips’ sworn statement, the Connecticut Superior Court issued a warrant for Spak’s arrest on June 15, 2010, and based on that warrant Spak was arrested on June 24, 2010. On September 10, 2010, the prosecuting attorney unilaterally dismissed the charges against Spak by entering a nolle prosequi. A nolle prosequi is “a declaration of the prosecuting officer that he will not prosecute further at that time ... Upon the entering of a nolle prosequi by the state’s attorney, there is no case.” State v. Winer, 286 Conn. 666, 685, 945 A.2d 430 (2008) (quoting State v. Ackerman, 27 Conn.Supp. 209, 211, 234 A.2d 120 (1967)). The state never instituted further charges against Spak subsequent to the nolle stemming from the June 12, 2010 incident.

On October 29, 2013, Spak sued Phillips in Connecticut state court for malicious prosecution under Section 1983 and the Fourth Amendment. Phillips removed the action to the District of Connecticut on November 18, 2013. On January 30, 2015, Phillips moved for summary judgment on several grounds, including that Spak’s action was untimely because he filed his complaint more than three years after the accrual of his claim. On October 14, 2015, the district court granted Phillips’ motion for summary judgment on that ground. Specifically, the district court held that Spak’s malicious prosecution claim accrued on September 10, 2010, when the charges against him were nolled, and therefore dismissed the suit as time-barred. Spak now appeals.

DISCUSSION

A district court’s grant of summary judgment is reviewed de novo. Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994). All legal conclusions by a district court are reviewed de novo. United States v. Livecchi, 711 F.3d 345, 351 (2d Cir. 2013) (per curiam).

On appeal, it is uncontested that Spak filed his complaint alleging malicious prosecution more than three years after the state’s attorney’s entry of a nolle prosequi. Spak concedes that if his claim for malicious prosecution accrued on the date that the state’s attorney nolled the charges against him, his suit is untimely. However, he argues that his claim did not accrue on the date that the charges against him were nolled, but thirteen months later when Connecticut law mandated that the records of his nolled prosecution be erased.

I. Accrual of Section 1983 Claims

In the absence of federal common law, the merits of a claim for malicious prosecution under Section 1983 are governed by state law. Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989). Likewise, the applicable statute of limitations for a malicious prosecution claim is borrowed from the statute of limitations for the analogous claim under the law of the state where the cause of action accrued, see Lounsbury v. Jeffries, 25 F.3d 131, 133 (2d Cir. 1994); see also Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007), which in Connecticut is three years, see Walker v. Jastremski, 430 F.3d 560, 562 (2d Cir. 2005).

However, the time at which a claim for malicious prosecution under Section 1983 accrues is “a question of federal law that is not resolved by reference to state law.” Wallace, 549 U.S. at 388, 127 S.Ct. 1091. Federal courts apply “general ... common-law tort principles” to determine the accrual date of a Section 1983 claim. Id.-, see also Manuel, 137 S.Ct. at 920 (“In defining the contours and prerequisites of a § 1983 claim, including its rule of accrual, courts are to look first to the common law of torts.”). In malicious prosecution suits under Section 1983, the statute of limitations begins to run when the prosecution “terminated in the plaintiffs favor.” Poventud v. City of N.Y., 750 F.3d 121, 130 (2d Cir. 2014) (en banc) (quoting Heck v. Humphrey, 512 U.S. 477, 489-90, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994)). A “favorable termination” does not occur until the prosecution against the plaintiff has “conclusively” ended. Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995).

One point of clarification regarding this accrual rule is in order. The fact that the accrual of Section 1983 claims is analyzed under federal common law, while the merits of those claims are analyzed under the law of the state where the tort occurred, has led to some confusion concerning the standards used to define a “favorable termination” in the malicious prosecution context. This is because a malicious prosecution claim accrues when the underlying prosecution terminates in favor of the accused, id., but “favorable termination” is also a substantive element of a state law tort claim, see, e.g., Singleton v. City of New York, 632 F.2d 185, 193 (2d Cir. 1980). While the same phrase—“favorable termination”—is used in both the accrual analysis and the merits analysis of a Section 1983 suit, it is analyzed under a different legal standard in each context.

When the question before a federal court is at what point a malicious prose-eution claim accrued, “favorable termination” is analyzed under federal common law, because the timing of accrual is a question of federal law. See, e.g., Wallace, 549 U.S. at 388, 127 S.Ct. 1091. When, by contrast, a federal court is analyzing the substantive merits of a plaintiffs claim, the definition of “favorable termination” is analyzed under state law. See, e.g., Singleton, 632 F.2d at 193. What constitutes a “favorable termination” may turn out to be the same in each context, but not necessarily so. However, even if “favorable termination” in a particular case is unclear as a matter of state law, it can still be conclusively resolved as a matter of claim accrual under federal law. Thus, the fact that a nolle prosequi constitutes a favorable termination under Connecticut state law may be relevant to our accrual inquiry, but it is not dispositive. Unless a nolle also constitutes a “favorable termination” under federal common law, then Spak’s claim did not accrue for Section 1983 purposes upon entry of the nolle.

II. Effect of a Nolle Prosequi

Under Connecticut law, a prosecutor may decline to prosecute a case by entering a nolle prosequi. Conn. Practice Book § 39-31 (2017). The effect of a nolle is to terminate a particular prosecution against the defendant. However, a nolle prosequi is not the equivalent of a dismissal of a criminal prosecution with prejudice, because jeopardy does not attach. Roberts v. Babkiewicz, 582 F.3d 418, 420 (2d Cir. 2009) (per curiam) (“A nolle prosequi is ‘a unilateral act by a prosecutor, which ends the pending proceedings without an acquittal and without placing the defendant in jeopardy.’ ”) (quoting Cislo v. City of Shelton, 240 Conn. 590, 599 n.9, 692 A.2d 1255 (1997)).

The statute of limitations on the nolled charge continues to run, and the prosecutor may choose to initiate a second prosecution at any time before the limitations period expires. Winer, 286 Conn, at 684-85, 945 A.2d 430. A prosecution can only be reinstituted following a nolle, however, by the filing of a new charging document and a new arrest. Id. at 685, 945 A.2d 430. If a new prosecution is not commenced, Connecticut law requires that within thirteen months of the nolle “all police and court records and records of the state’s or prosecuting attorney” related to the prosecution be erased. Conn. Gen. Stat. § 54-142a(c)(l); see also Martin v. Hearst Corp., 777 F.3d 546, 549 (2d Cir. 2015).

III. The Nolle Prosequi Constituted a Favorable Termination for Claim Accrual Purposes

We agree with the district court that as a general matter a nolle prosequi constitutes a “favorable termination” for the purpose of determining when a Section 1983 claim accrues. The weight of authority on the common law of malicious prosecution supports this conclusion. See, e.g., Restatement (Second) of Torts § 659 cmt. (c) (Am. Law Inst. 1977) (“If the public prosecutor has power to make such an entry [of nolle prosequi] without the consent of the court, the entry constitutes a termination of the proceedings in favor of the accused.”). Other federal courts have held that the entry of a nolle prosequi is sufficient to constitute a favorable termination. See, e.g., Owens v. Balt. City State’s Attorneys Office, 767 F.3d 379, 390 (4th Cir. 2014), cert. denied sub nom. Balt. City Police Dep’t v. Owens, — U.S.-, 135 S.Ct. 1893, 191 L.Ed.2d 762 (2015) (citing common law authorities to conclude that a nolle prosequi constitutes a favorable termination); Donahue v. Gavin, 280 F.3d 371, 383 (3d Cir. 2002); White v. Rockafellow, 181 F.3d 106, 106 (6th Cir. 1999); Washington v. Summerville, 127 F.3d 552, 557 (7th Cir. 1997).

To be sure, courts and common law authorities state that a nolle does not constitute a favorable termination when it is entered for reasons that are “not indicative of the defendant’s innocence.” Washington, 127 F.3d at 557. However, this qualifier is defined narrowly. It generally only includes nolles that are caused by the defendant—either by his fleeing the jurisdiction to make himself unavailable for trial or delaying a trial by means of fraud. It also includes any nolle entered in exchange for consideration offered by the defendant (e.g., cooperation). See generally Restatement (Second) of Torts § 660 (Am. Law Inst. 1977).

Spak disputes this conclusion, and cites our decision in Murphy v. Lynn which states that the termination of a prosecution must be “conclusive[ ]” in order to satisfy the favorable termination requirement of a Section 1983 claim. 53 F.3d at 548. Murphy involved a malicious prosecution claim originating in New York, while Spak’s claim accrued in Connecticut, but it is nonetheless relevant because favorable termination for accrual purposes is a matter of federal law which does not vary from state to state. Spak contends that a nolle prosequi is not a “conclusive” termination of a prosecution because jeopardy does not attach when a nolle is entered and the prosecuting attorney may file new charges against the same defendant for the same criminal act at any time before the statute of limitations on the underlying crime has run.

This argument misreads our holding in Murphy. It is true that, strictly speaking, a nolle prosequi only terminates a specific prosecution by vacating a charging instrument; it does not prevent a prosecutor from re-charging the same defendant for the same criminal conduct at some point in the future. Winer, 286 Conn, at 685, 945 A.2d 430. Under the common law, however, a termination of the existing prosecution is sufficient for a malicious prosecution claim to accrue. See W. Page Keeton, et al, Prosser & Keeton on Torts § 119 (5th ed. 1984) (noting that the entry of a nolle prosequi constitutes favorable termination for malicious prosecution charges when it “h[as] the effect of ending the particular proceeding and requiring new process or other official action to commence a new prosecution”). So long as a particular prosecution has been “conclusively” terminated in favor of the accused, such that the underlying indictment or criminal information has been vacated and cannot be revived, then the plaintiff has a justiciable claim for malicious prosecution. At that point, all of the issues relevant to the claim—such as malice and lack of probable cause, see, 299 Conn, at 210-11, 9 A.3d 347—are ripe for adjudication. Nothing in our opinion in Murphy can be read to contravene this longstanding common law rule.

We are mindful that both our court, see DiBlasio v. City of New York, 102 F.3d 654, 658 (2d Cir. 1996), and the Supreme Court have warned against the possibility of parallel civil and criminal litigation arising from the state’s prosecution of the same defendant for the same criminal offense, Heck, 512 U.S. at 484-86, 114 S.Ct. 2364 (noting that favorable termination requirement “avoids parallel litigation over the issues of probable cause and guilt ... and [] precludes the possibility of the claimant [sic] succeeding in the tort action after having been convicted in the underlying criminal prosecution, in contravention of a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction”) (quoting 8 S. Speiser, C. Krause, & A. Gans, American Law of Torts § 28:5, p. 24 (1991)); accord Poventud, 750 F.3d at 130.

However, we read our precedent and the Supreme Court’s dicta in Heck v. Humphrey to counsel only against duplicative litigation on issues of guilt and probable cause arising out of the same accusatory instrument. Heck and its progeny generally deal with Section 1983 suits that are filed by plaintiffs asserting that a prior criminal conviction is invalid, and seeking to recover damages for the state’s abuse of legal process. Those decisions thus require that the plaintiff demonstrate that the outstanding conviction has been conclusively invalidated in a manner that demonstrates his innocence before he can pursue his civil claim. See, e.g., Heck, 512 U.S. at 484-81, 114 S.Ct. 2364; Poventud, 750 F.3d at 131-33; DiBlasio, 102 F.3d at 658-59. They do not address the type of termination at issue here, in which a plaintiff was never convicted of a criminal offense, but the charges against him were dismissed in a manner that did not preclude future prosecution under a different charging instrument.

We do not read those opinions to prevent such a plaintiff from bringing suit on the basis of vacated charges simply because he might be prosecuted again in the future, even successfully. See, e.g., Restatement (Second) of Torts § 659, cmt. b (1977) (Am. Law Inst. 1977) (“In order that there may be a sufficient termination in favor of the accused it is not necessary that the proceedings should have gone so far as to preclude further prosecution on the ground of double jeopardy.”). Indeed, while it is theoretically possible that a prosecutor could revive a nolled case, and obtain a criminal conviction against a defendant who has already received a favorable civil judgment in a malicious prosecution suit, we think that this is highly unlikely to occur in practice. Cf. Uboh v. Reno, 141 F.3d 1000, 1005-06 (11th Cir. 1998) (holding that a prosecutor’s unilateral dismissal of charges constituted a favorable termination, on the grounds that it was “extraordinarily unlikely” that the prosecutor would “renew[] [the charges] in a subsequent action”).

Moreover, preventing plaintiffs from bringing suit for malicious prosecution once a nolle is entered would be inconsistent with the purpose of Section 1983. See Manuel, 137 S.Ct. at 921 (“In applying, selecting among, or adjusting common-law approaches [for determining when a claim under Section 1983 accrues], courts must closely attend to the values and purposes of the constitutional right at issue.”). When the state institutes criminal charges maliciously and without probable cause and requires a defendant to appear before a court and answer those charges, it violates the Fourth Amendment’s guarantee against unlawful seizure. See Murphy, 118 F.3d at 944. The accused is entitled to seek recovery for such a wrongful seizure as soon as the charges are vacated. His day in court should not be delayed merely because the state remains free to bring a similar prosecution in the future.

Lastly, Spak’s contention that his claim accrued not upon entry of the nolle, but thirteen months later when records of the charges against him were automatically erased pursuant to Connecticut state law, see Conn. Gen. Stat. § 54-142a(e)(l), is meritless. Connecticut courts have made clear that the erasure provision Spak cites is a purely administrative measure, Winer, 286 Conn, at 679-80, 945 A.2d 430 (holding that “the recording of nolles and later, the erasure of criminal records,” are “administrative rather than substantive in intent”). Moreover, the erasure of records pertaining to a prosecution does not preclude the prosecuting attorney from filing new charges against the same defendant at some point in the future. See id. at 683, 945 A.2d 430 (noting that the erasure provision does not “provide new substantive protections for defendants”). This statute therefore provides no more “conclusive” bar to future criminal proceedings than the nolle itself.

CONCLUSION

We have considered Spak’s remaining arguments, and we find them unavailing. We therefore AFFIRM the judgment of the district court.

      . Under Connecticut law, a plaintiff asserting malicious prosecution must prove that: "(1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice.” Brooks v. Sweeney, 299 Conn. 196, 210-11, 9 A.3d 347 (2010). The United States Supreme Court has never squarely held that a plaintiff may bring a suit under Section 1983 for malicious prosecution based on an alleged violation of his Fourth Amendment rights. In Manuel v. City of Joliet, -U.S.-, 137 S.Ct. 911, 197 L.Ed.2d 312 (2017), the Supreme Court confirmed that plaintiffs can sustain Section 1983 suits under the Fourth Amendment for deprivations of liberty suffered as a result of improper or maliciously instituted legal process. Id. at 918 (‘‘[Tjhose objecting to a pretrial deprivation of liberty may invoke the Fourth Amendment when ... that deprivation occurs after legal process commences.”). However, the Court's opinion in Manuel did not directly address the other "elements of, and rules associated with, an action seeking damages for” an unlawful pretrial detention. Id. at 920. The rule in the Second Circuit is that plaintiffs may bring what is in effect a state law suit -for malicious prosecution in federal court under Section 1983, so long as they are able to demonstrate a deprivation of liberty amounting to a seizure under the Fourth Amendment. Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 116 (2d Cir. 1995). Under our precedent, such a suit is proper where: (1) the defendant is a state actor, and (2) the plaintiff who was subject to malicious prosecution was also subject to arrest or seizure within the meaning of the Fourth Amendment. See Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010).

        . Our opinion in Roberts v. Babkiewicz, 582 F.3d 418 (2d Cir. 2009), did not settle this issue. In Roberts, the district court granted judgment on the pleadings to the defendants on the plaintiff's Section 1983 malicious prosecution claim. Id. at 419-20. The district court held that the plaintiff had not demonstrated that the dismissal of criminal charges against him by nolle prosequi constituted a "favorable termination” as a matter of state substantive law, because the charges had been nolled as part of a plea agreement. Id. at 420. We remanded the case to the district court for further proceedings, on the basis that the facts in the complaint, construed in the light most favorable to the plaintiff, did not necessarily demonstrate that the nolle was entered in exchange for a plea to a lesser charge. Id. at 421-22. However, our opinion in Roberts only dealt with the merits of the plaintiff's underlying state law claim. It did not address the question of whether a nolle constitutes a favorable termination under federal common law.

      . We are aware that the District of Connecticut has held in several instances that a nolle is not sufficient to constitute favorable termination, and that a plaintiff must obtain either an unqualified dismissal or an acquittal of charges in order to pursue a malicious prosecution claim under Section 1983. See Simpson v. Denardo, No. 3:02CV1471(MRK), 2004 WL 1737444, at *10 (D. Conn. July 29, 2004) ("A nolle prosequi does not qualify as a favorable termination for purposes of a malicious prosecution claim.”); Bacchiocchi v. Chapman, No. 03:02CV1403, 2004 WL 202142, at *4-5 (D. Conn. Jan. 26, 2004). These holdings were based on the Second Circuit's decision in Roesch v. Otarola, 980 F.2d 850, 853 (2d Cir. 1992), which stated that "[a] person who thinks there is not even probable cause to believe he committed the crime with which he is charged must pursue the criminal case to an acquittal or an unqualified dismissal, or else waive his section 1983 claim.” In Roesch, the prosecution against the plaintiff was not terminated by a nolle prosequi, but rather by participation in a pre-trial rehabilitation program. Id. at 851. To the extent that district courts have read Roesch to imply that a nolle does not constitute a favorable termination, this reading is mistaken.