                             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 re-
view 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 extor-
tion. 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 commit-
ted several prejudicial errors that required a new suppres-
sion hearing and trial. On remand, the district court found
several inconsistencies between the officers’ stories sur-
rounding 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 sup-
press 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 dis-
missed 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 Judg-
   ment 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. Mary-
land, 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 evi-
dence in the record to create a genuine issue of fact concern-
ing 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 under-
mines 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 con-
cluded 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 adjudica-
tion 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 com-
pelled 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 ap-
pealed 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 dis-
trict 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
