In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-4193

JOSEPH P. IENCO,

Plaintiff-Appellant,

v.

KENNETH ANGARONE, individually

and in his capacity as a member of the

Chicago Police Department, AND

THOMAS MCGANN, individually and

in his capacity as a member of the

Chicago Police Department,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 3831—Ruben Castillo, Judge.

____________

ARGUED MAY 11, 2005—DECIDED NOVEMBER 14, 2005

____________

Before COFFEY, MANION, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Joseph P. Ienco is no stranger

to this court. This appeal is our fifth opportunity to review the facts underlying this case, which began as a

criminal proceeding but has now spawned much civil

litigation. In granting defendants’ motion for summary

judgment, the district court held that Ienco failed to present

sufficient evidence to create a genuine issue of fact that the

defendants violated his due process rights. In addition, the
2 No. 03-4193

district court concluded that Ienco abandoned any Fourth

Amendment claim he may have had stemming from his

illegal arrest. Finally, the court sanctioned Ienco for failing

to make himself available for deposition. We agree with the

district court’s rulings and, therefore, affirm.

I. BACKGROUND

Joseph Ienco operated as a real estate broker and rent

collector, along with his associate Gregory Iovine. On the

side, Ienco doubled as a debt-collection enforcer. In August

1994, Ienco and Iovine were sent to collect payment from a

Chicago businessman, Jerome Greenberg, who apparently

owed a debt to Ienco’s employer, a clothing importer. While

in Chicago to collect on the debt, Ienco and Iovine were

arrested. Ienco was charged with various federal crimes

stemming from the stash of illegal weapons and explosives

he carried with him to Chicago and his attempt at extortion. At trial, Iovine pled guilty and testified against Ienco,

who was promptly convicted of conspiracy to commit

extortion, 18 U.S.C. § 1951, interstate travel in aid of

racketeering, 18 U.S.C. § 1952, and using or carrying

firearms during and in relation to a crime of violence, 18

U.S.C. § 924(c).

Ienco appealed his conviction as well as the district

court’s ruling on his motion to suppress evidence that Ienco

claimed was gathered as a result of an illegal arrest. In

United States v. Ienco, 92 F.3d 564 (7th Cir. 1996) (“Ienco I”),

we reversed Ienco’s conviction and remanded for a new

suppression hearing, finding that the district court committed several prejudicial errors that required a new suppression hearing and trial. On remand, the district court found

several inconsistencies between the officers’ stories surrounding Ienco’s and Iovine’s arrest and partially granted

Ienco’s motion to suppress. The government appealed, and

the defendant moved to dismiss the government’s appeal for
No. 03-4193 3

lack of jurisdiction because the district court had not

entirely resolved the motion to suppress. In United States

v. Ienco, 126 F.3d 1016 (7th Cir. 1997) (“Ienco II”), without

reaching the merits of the appeal, we denied the motion to

dismiss, but remanded the case with instructions that the

district court enter an order ruling on the motion to suppress in its entirety. The district court granted the motion

to suppress and we affirmed in United States v. Ienco, 182

F.3d 517 (7th Cir. 1999) (“Ienco III”).

After our decision in Ienco III, the government dismissed the indictment, and Ienco brought this civil action.

Initially, Ienco alleged a host of constitutional violations,

but eventually focused on a single issue: whether the

defendants were liable for malicious prosecution under both

Illinois and federal law. The district court concluded, in

ruling on defendants’ motion for summary judgment, that

the undisputed material facts did not permit Ienco to

pursue malicious prosecution claims against either the

officers or the City. Ienco v. City of Chicago, et. al., 148 F.

Supp. 2d 938 (N.D. Ill. 2001). Ienco appealed. We reversed

the grant of summary judgment and, consistent with our

decision in Newsome v. McCabe, 256 F.3d 747 (7th Cir.

2001), remanded to allow Ienco to amend his complaint to

allege that the two Chicago police officers Kenneth

Angarone and Thomas McGann, who originally stopped and

arrested Ienco, violated his due process rights. Ienco v. City

of Chicago, et al., 286 F.3d 994 (7th Cir. 2002) (“Ienco IV ”).

On remand, the district court granted summary judgment

in favor of the two officers on Ienco’s amended complaint.

This appeal followed.
4 No. 03-4193

II. ANALYSIS

A. The District Court Properly Granted Summary Judgment in Favor of the Defendants on Ienco’s Due Process

Claim.

In Ienco IV, we found that Ienco’s claim of malicious

prosecution failed as a matter of law, but remanded the

case to allow Ienco the opportunity to allege that the

officers violated his right to due process by withholding

information or evidence necessary for him to receive a

fair and impartial trial as guaranteed by the Constitution.

We held in Newsome that due process claims against the

police alleging the withholding of evidence should be

analyzed under the framework set forth in Brady v. Maryland, 373 U.S. 83 (1963). 256 F.3d at 752. Under Brady, the

government must disclose favorable evidence that is

material to either the defendant’s guilt or possible sentence.

373 U.S. at 87. In order to prevail under Brady, Ienco must

show that: (1) the government suppressed evidence; (2) the

evidence was favorable to the defense, either because it was

exculpatory or had impeachment value; and (3) the evidence

was material to an issue at trial. United States v. Grintjes,

237 F.3d 876, 880 (7th Cir. 2001). Evidence is suppressed

for Brady purposes when (1) the prosecution failed to

disclose the evidence in time for the defendant to make use

of it, and (2) the evidence was not otherwise available to the

defendant through the exercise of reasonable diligence.

United States v. O’Hara, 301 F.3d 563, 569 (7th Cir. 2002)

(citing Boss v. Pierce, 263 F.3d 734, 740 (7th Cir. 2001)).

On appeal, Ienco argues that there is sufficient evidence in the record to create a genuine issue of fact concerning whether the police suppressed a printout from the

National Crime Information Center (“NCIC”) and the

Law Enforcement Automated Data System (“LEAD”) and

concealed false information within a police report created by

the officers. We find that the district court properly granted
No. 03-4193 5

summary judgment in favor of the police officers because

the evidence Ienco argues was suppressed is immaterial to

the criminal charges—conspiracy to commit extortion,

interstate travel in aid of racketeering, and using or

carrying firearms during and in relation to a crime of

violence—that Ienco faced. Furthermore, the suppressed

evidence was either readily available to him before his

criminal trial or evidence that he could have testified to at

trial. In particular, we find that the district court properly

found that the NCIC/LEAD report, which detailed when the

police actually ran Ienco’s driver’s license into the system

during his initial stop by police, was information readily

available to Ienco’s counsel via subpoena and also the type

of evidence that Ienco could have testified to at trial. We

cannot find any evidence on appeal that was both material

to Ienco’s defense at trial and suppressed by the police. As

such, we find that the district court properly granted

summary judgment in favor of the police on Ienco’s due

process claim.

B. Ienco Abandoned His Fourth Amendment Claims

In Gauger v. Hendle, 349 F.3d 354 (7th Cir. 2003), we

recognized that a false arrest is an unreasonable seizure

prohibited by the Fourth Amendment, 349 F.3d at 360, and

restated the general rule that the statute of limitations

in false arrest cases begins to run when the arrest is

made because such claims typically do not undermine a

conviction. 349 F.3d at 361. We rejected a broad exception

that a false arrest or other Fourth Amendment claims

are always premature while the plaintiff still faces criminal

punishment, and instead recognized that there are times

when a successful challenge to a false arrest can indeed

impinge upon the validity of an underlying conviction. Id.

As a result, we held that where a false arrest claim undermines the validity of a criminal conviction, it does not
6 No. 03-4193

accrue until the criminal conviction is reversed. Id. at 362.

On appeal, Ienco argues that we should allow him to amend

his complaint for a second time to state a claim for false

arrest. We disagree.

In granting summary judgment in favor of the police

officers, the district court gave three reasons why Ienco

should not be allowed to avail himself of the exception

announced in Gauger: (1) Ienco’s false arrest did not

call into question his criminal convictions; (2) the law of the

case doctrine applied; and (3) Ienco abandoned his false

arrest claims. We find that the first two rationales are

incorrect, but the third rationale is consistent with

the procedural history of this case and sufficient to affirm

the district court’s grant of summary judgment on this

issue.

The district court explained that Ienco’s illegal arrest was

not related to his criminal convictions because, with the

exception of the firearms charge, none of the evidence

stemming from Ienco’s illegal arrest established any of

the elements of the extortion or racketeering charges. In

Ienco III, however, this court discussed the extent and

nature of the government’s case against Ienco and concluded that every piece of evidence the government used

to convict Ienco stemmed from his illegal arrest. Based on

the underlying allegations supporting the extortion,

racketeering and gun charges, we again find that the

government could have neither charged nor convicted Ienco

of any of those crimes without the illegal arrest. As a result,

Ienco’s potential false arrest claim would have directly

called into question the propriety of his conviction and,

therefore, under Gauger, was not ripe until the underlying

conviction was overturned.

The district court incorrectly found that the law of the

case doctrine prevented Ienco from availing himself of

Gauger. The law of the case doctrine is a rule of practice:
No. 03-4193 7

once an issue is litigated and decided that should be the end

of the matter. Creek v. Village of Westhaven, 144 F.3d 441,

445 (7th Cir. 1998). In Ienco IV, we stated in dicta that

Ienco’s false arrest claim was time-barred by two years. 286

F.3d at 1000-01. The issue of whether Ienco’s false arrest

was time-barred was never litigated before the district court

or this court. As a result, this is a situation where the law

of the case doctrine does not apply.

Despite Gauger’s applicability to this case, we find that

Ienco abandoned and, therefore, waived any false arrest

claim that he may have once had. In his initial civil suit,

Ienco sued pursuant to 42 U.S.C. § 1983 claiming that

the City of Chicago and police officers Angarone and

McGann violated his civil rights by subjecting him to

malicious prosecution. Ienco also asserted unspecified

violations of his rights under the First, Fourth, Fifth,

Eighth, and Fourteenth Amendments as well as a pendent

state law claim of malicious prosecution. During adjudication of the defendants’ first motion for summary judgment,

the district court found that Ienco had failed to develop any

of his claims under the First, Fourth, Fifth, or Eighth

Amendments in his responsive pleadings, and noted in its

decision that Ienco had withdrawn “such claims [under the

First, Fourth, Fifth, and Eighth Amendments] as being

outside the scope of a malicious prosecution claim.” Ienco v.

City of Chicago, 148 F. Supp. 2d 938, 940 n. 1 (N.D. Ill.

2001). On appeal, in Ienco IV, Ienco did not challenge the

district court’s finding of withdrawal and did not develop for

our review any new theory of relief under the Fourth

Amendment. Instead, Ienco only argued that the district

court erred in granting summary judgment on his malicious

prosecution claim. As a result, Ienco has abandoned his

claims under the Fourth Amendment and cannot revive

them now. Duncan v. Wis. Dep’t of Health and Family

Servs., 166 F.3d 930, 934 (7th Cir. 1999) (noting that a

party must develop any arguments it wishes the court to
8 No. 03-4193

consider or they will be deemed abandoned).

Ienco argues that he did not voluntarily relinquish his

known Fourth Amendment rights, but instead felt compelled to withdraw his claims based on Seventh Circuit

precedent that he alleges dictated that his false arrest claim

was time barred. This argument has no merit. When Ienco

filed his civil complaint, he needed to look no further than

the United States Supreme Court’s decision in Heck v.

Humphrey, 512 U.S. 477, 486-87 (1994), in which the Court

held that a constitutional claim cannot be filed until an

underlying criminal conviction is nullified where the

constitutional claim, if vindicated, would undermine the

conviction. So, there was already precedent within federal

law for the exception to the general accrual rule long before

Gauger specifically spelled it out. Ienco should have appealed the dismissal of his Fourth Amendment claim

in Ienco IV, if he believed his claim was viable under the

facts of this case. We cannot remedy his lack of appeal in

Ienco IV with an opportunity to amend in Ienco V.

As a final matter, Ienco also challenges the district court’s

imposition of monetary sanctions, totaling $4075, for

asserting his Fifth Amendment privilege in response

to deposition questioning. The court concluded that

Ienco’s assertion of privilege lacked merit and was an

obstructionist tactic. Reviewing an order of sanctions for

abuse of discretion, Johnson v. Waddell & Reed Inc., 74

F.3d 147, 151 (7th Cir. 1996), we conclude that the district court did not err when it sanctioned Ienco. We also find

that $4075 is a reasonable and appropriate award for

attorneys’ fees and costs related to Ienco’s conduct. See

Riddle & Assocs., P.C. v. Kelly, 414 F.3d 832, 837 (7th Cir.

2005).
No. 03-4193 9

III. CONCLUSION

For all the foregoing reasons, we AFFIRM the judgment

of the district court.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-14-05