Al Capone

Public Enemy #1

George E. Q. Johnson (Bergreen)

Although Al didn't understand it at the time, the St. Valentine's Day Massacre and the subsequent ocean of publicity, some of which glamorized Capone and some of which demanded justice, catalyzed the government forces against him.  After just a few days in office, Herbert Hoover pressured Andrew Mellon, the Secretary of the Treasury, to spearhead the government's battle against Capone.

Mellon commissioned a two-pronged approach:  to get the necessary evidence to prove income tax evasion and to amass enough evidence to prosecute Capone successfully for Prohibition violations.  Once the evidence was collected, the Treasury agents were to work with the U.S. Attorney, George E. Q. Johnson to initiate prosecution of Capone and the key members of his organization.

Eliot Ness Prohibition Agent ID

The man charged with gathering the evidence of Prohibition violations --bootlegging --was Eliot Ness, who began to assemble a team of daring young agents like himself.  The biggest effort was led by Elmer Irey of the IRS Special Intelligence Unit, who redoubled his ongoing efforts shortly after Hoover's mandate.  While there was doubt that Capone could be successfully prosecuted for Prohibition violations in Chicago, regardless of the weight of evidence, Mellon felt sure that with the Sullivan ruling the government could get Capone on tax evasion.

Capone was, at least initially, unaware of the forces put in motion against him and generally did not let concerns about federal agents interfere with business. In mid-May, 1929, Capone went to a conference in Atlantic City  where gangsters of all types from all over the country met to talk about cooperation rather than mutual destruction. 

To keep violence and rivalry to a minimum, they divided up the country into "spheres of influence."   Torrio became head of an executive committee which would arbitrate all disputes and punish renegades.  The conferees had decided that Capone should surrender his Chicago criminal empire to Torrio to divvy up on his own terms.  Capone had no intention of going along with carving up his empire or turning it over to Johnny Torrio.

After the conference, Capone went to a movie in Philadelphia.  When the movie was over, two detectives were waiting for him.  In less than 24 hours Capone was arrested and imprisoned for carrying a concealed weapon.

Taking off his 11 1/2 carat diamond pinkie ring, Capone gave it to his lawyer to pass on to Ralph and was packed off first to the Holmesburg County Jail and finally to the Eastern Penitentiary where he stayed until March 16, 1930.  He left the running of the business to his brother Ralph, Jack Guzik and Frank Nitti "The Enforcer."

Ralph Capone (Chicago Historical Society)

Another setback to Capone came when Ralph was indicted on tax evasion charges in October of that year.  Wanting to send a message to other gangsters, federal agents led Ralph away from a boxing match in handcuffs.  Persistent civil servant Elmer Irey had been investigating Ralph for years.  Ralph was nowhere near as smart as his brother Al when it came to hiding his wealth and financial transactions.  He was sloppy, greedy and dumb -- a natural target for an ambitious Treasury agent named Eliot Ness, who wiretapped his phones, and Nels Tessem, a highly-talented IRS agent, who scrutinized every financial transaction that Ralph made.   Nitti and Guzik also had their days in tax court as a result of this determined and exhaustive investigation.

Frank "The Enforcer" Nitti (Historical Society)

With Al in jail and Ralph, Guzik and Nitti running the business, Ness was given the mission of collecting enough evidence of Capone's bootlegging to convince a grand jury that Capone was violating Prohibition laws as well as evading income tax.   Ness had his men tap Ralph's phones continuously.  With the intelligence Ness gathered, he was able to ram the front door of Capone's South Wabash brewery with a truck outfitted with a snowplow on the front.  Emboldened by this frontier lawman approach, Ness and his "Untouchables" continued to wiretap and shut down Capone breweries.

In mid-March of 1930, Capone was released from jail, a few months early because of good behavior. A week later, Frank J. Loesch, the head of the Chicago Crime Commission, put together a Public Enemies list which was headed by Alphonse Capone, Ralph Capone, Frank Rio, Jack McGurn, and Jack Guzick, all Capone colleagues.  The list was publicized in the newspapers and quickly adapted by J. Edgar Hoover as the FBI's list of the "Most Wanted" criminals.  So now, Al Capone, who wanted so much to legitimize himself as a contributing member of the community was Public Enemy Number One. He was enraged, humiliated and thoroughly insulted.

Left to right: Elmer L. Irey, George E. Q. Johnson, Frank J. Wilson, and Arthur P. Madden

In that same month, Elmer Irey went to Chicago to meet with the agent-in-charge Arthur P. Madden to map out their battle strategy.  It became clear to both of them that they needed an insider in the Capone organization if they were going to be successful in the short-term.  Before he went back to Washington, Irey spent two days hanging around the lobby of the Lexington Hotel, posing as a salesman.  Once he developed a feel for the kinds of thugs that lived there, he came up with a brilliant idea: he would find two undercover agents who could, posing as gangsters, infiltrate the Capone organization.

"The obvious choice was Michael J. Malone....He was a good actor, with an ability to blend into any background.  He had nerves of steel and a sharp intelligence.   His dark, almost Mediterranean looks and his ability to speak Italian made him an ideal candidate for infiltration into the Italian-dominated Capone empire" (Ludwig, Smyth).  Another undercover agent was selected to be his partner in this venture.

Malone would take the name De Angelo and the other agent Graziano.  Major efforts were made to create false identities for the two men as small-time Brooklyn racketeers.   They knew that every single detail of the forged identities would be scrutinized and that their lives depended upon how well they studied for their parts.

Neither Graziano nor De Angelo could ever be seen or heard talking to Irey or Madden, so an intermediary had to be found.  The third agent in this venture was Frank J. Wilson, a 43-year-old star in the agency.  Wilson would not only be the contact man for Graziano and De Angelo, he was to coordinate intelligence and evidence and perform some of the investigations himself.

Jake Lingle (Chicago Tribune)

In June of 1930, Wilson got approval from the eccentric publisher of the Chicago Tribune to question one of his reporters. Jake Lingle was a friend of Al Capone's who flaunted the relationship.  Bergreen believed that Lingle wanted more than the profitable connection he had to the mob.  "His influence made him feel invulnerable when in fact his position was extremely vulnerable.  Acting as a double agent or even a triple agent was too thrilling to resist.  Not satisfied with playing this extremely tricky role, he agreed to inform on Capone for the federal government." 

Lingle's appointment was June 10, but he got a bullet in the back of his skull the day before. 

The uproar was deafening.  Capone rode it all out at his home in Miami Beach.  When asked about Lingle, Capone said, "newspapers and newspapermen should be busy suppressing rackets and not supporting them.  It does not become me of all persons to say that, but I believe it."

Meanwhile, Irey's Mike "De Angelo" checked himself into the Lexington Hotel, dressed himself in flashy expensive clothing and hung around the hotel bar, quietly reading the newspapers.  Eventually the Capone soldiers struck up a conversation with him and started to ask him questions about his background.

"We want the McCoy about you," one of the gangsters told him.  "You look like maybe you're on the lam and might be open to a proposition --and how do you know, we might have something for you."

De Angelo played along: "matter of fact, I am open for something, but it's got to be good.  If you want it straight, why I come out here in the first place is I didn't know but what maybe I could tie in with the Big Boy."

The gangster told him they had to do some checking first, but to hang around for a few days and they'd give him an answer.  De Angelo hoped he hadn't screwed up any of his fabricated identity or he would be a dead man.  A few days later, he was invited to meet with the mob and Capone himself at a big party.  Fully aware that Capone would wine and dine a traitor and beat him to death with a baseball bat,  De Angelo went to the party with trepidation.  Fortunately, Irey's thoroughness in crafting his agent's background paid off handsomely.  De Angelo was made a croupier in one of Capone's Cicero gambling joints.

Just before Ralph Capone's trial, De Angelo found out that the mob was going to focus on the government's witnesses.  It was good intelligence because Irey arranged for extra protection of the government witnesses.  The result was a guilty verdict for Ralph and no damage to government witnesses.

A few months later, De Angelo was joined by Graziano, who got a job checking on Capone's beer deliveries.  Just before Christmas, they uncovered a plot on Wilson's life and caught it just in time.  Now that the Capone organization knew about Wilson, Irey wanted to reassign him, but Wilson wouldn't have it.  This attempt on his life made him all the more determined to get Capone. 

The real intelligence paydirt came in a conversation between Graziano and one of Capone's employees.  "The income tax dicks ain't so smart.  They've had a record book of Al's for five years that could send him to jail, only they're too dumb to realize it."

It turned out that the mountain of records taken from a raid years earlier on the Hawthorne Hotel included a ledger that documented the financial operations of the Hawthorne Smoke Shop for the years 1924-1926.  What Irey needed now was to figure out the identity of the two bookkeepers who made those entries.  The handwriting didn't match up with any of Capone's men.  Chances were that Capone had them disposed of when the ledgers were seized.

Graziano took a huge risk and asked the man who told him about the ledgers if the bookkeepers had been "taken care of."  The gangster replied, "they weren't exactly taken care of because they were only a couple of dopes, but they left town five years ago when the smoke shop was raided."  Incredibly enough, the gangster then told Graziano their names:  Leslie Shumway and Fred Reis.

Capone's free soup kitchen (Chicago Historical Society)

As 1930 drew to a close, Capone embarked on a major publicity campaign.  He opened a free soup kitchen for the people who had been thrown out of work by the deepening Depression.  During the last two months of the year, the soup kitchen served three free meals a day.  "The soup kitchen was carefully calculated to rehabilitate his image and to ingratiate himself with the workingman, who, he realized, had come to regard him as another unimaginably wealthy and powerful tycoon"(Bergreen).

In the early months of 1931, Irey's men located Shumway in Miami, working ironically at Hialeah racetrack where Capone made almost daily visits when he was in residence.   Frank Wilson went to Miami to have a conversation with Shumway and escaped from city with the bookkeeper in tow just a half hour before a car full of goons came looking for the Shumway.  Fred Reis had gone to ground in Peoria, Illinois.   Both men agreed to cooperate fully and were given maximum security and protection.

On another government front, Eliot Ness was becoming increasingly successful at finding and shutting down Capone's brewing business.  He and his Untouchables had impressively documented thousands of Prohibition violations that would be used against Capone if the tax case failed.

Ness wanted very much to humiliate Capone publicly as well as to put him in jail. The murder of his one of his friends was the catalyst to a plan to openly embarrass Capone. From his many successful raids on Capone breweries and other liquor operations, Ness had accumulated some forty-five trucks of various types, most of which were new. The government had contracted for a new storage place for Ness’s vehicle collection that would eventually be sold at public auction. Until then, it was necessary to move the trucks to the new garage.

Ness hit on an idea to strike a psychological blow to Al Capone pride, something few intelligent people ever attempted.  Ness had all of the trucks polished to a fine shine. Then he arranged for a group of drivers to operate the convoy of trucks. When everything was ready, Ness made his boldest move.

He called Capone’s headquarters at the Lexington Hotel and bullied his way into getting Capone himself on the phone.

"Well, Snorkey," Ness called him by the nickname only Capone’s close friends used," I just wanted to tell you that if you look out your front windows down onto Michigan Avenue at exactly eleven o’clock you’ll see something that should interest you.

"What’s up?" Capone asked, curiosity in his tone.

"Just take a look and you’ll see," Ness said just before he slammed down the phone.

The motorcade came to the Capone’s Lexington Hotel headquarters at eleven o’clock in the morning. Moving very slowly, it passed a bunch of Capone’s gangsters milling around outside the hotel. Ness could see the wild gesticulating and confusion on Capone’s balcony.

This was a big day for Ness and his team. "What we had done this day," he told people later, "was enrage the bloodiest mob in criminal history…We had hurled the defiance of "The Untouchables" into their teeth; they surely knew by now that we were prepared to fight to the finish."

Ness had certainly succeeded in making Capone angry. Right after the parade, Capone stormed through his suite shrieking and breaking things up. Not only had Ness succeeded in enraging Capone, but, more importantly, he was making a significant dent in Capone’s business. Millions of dollars of brewing equipment had been seized or destroyed, thousands of gallons of beer and alcohol had been dumped and the largest breweries were closed.

Wiretaps on Capone’s lieutenants revealed how bad things were getting. The mob had to cut back its graft and payments to the policemen. Beer had to be imported from other areas to supply the speakeasies that used to buy Capone’s beer. Things got even worse when they raided a gigantic operation that was supplying 20,000 gallons a day.

Finally, the government’s mission was coming to closure in the early spring of 1931. Facing a six-year statute of limitations on some of the earlier evidence, the government had to prosecute the 1924 evidence before March 15, 1931.  A few days before that deadline, on March 13, a federal grand jury met secretly on the government’s claim that in 1924 Al Capone had a tax liability of $32,488.81. The jury returned an indictment against Capone that was kept secret until the investigation was complete for the years 1925 to 1929.

On June 5, 1931, the grand jury met again and returned an indictment against Capone with twenty-two counts of tax evasion totalling over $200,000.  A week later, a third indictment was returned on the evidence provided by Ness and his team. Capone and sixty-eight members of his gang were charged with some 5,000 separate violations of the Volstead Act, some of them going back to 1922. The income tax cases took precedence over the Prohibition violations.

Capone was facing a possible 34 years in jail if the government completely won its case. Capone’s lawyers presented  U.S. Attorney Johnson with a deal. Capone would plead guilty for a relatively light sentence. Johnson, after discussing the offer with Irey and the new Treasury Secretary Ogden Mills, accepted the deal and agreed to recommend a sentence between 2 and 5 years.

Why would the government after all its efforts take accept such a light sentence?   First of all, despite the government's extraordinary efforts to hide Shumway and Reis, there were very real concerns about them living to testify.  Capone had put a bounty of $50,000 on each of the bookkeeper's heads.  There was also some doubt that the six-year statute of limitations would be upheld by the Supreme Court.  An appeals court had already ruled on a three-year statute of limitations for tax evasion.  Then there was an enormous potential for jury tampering, both through bribery and intimidation.

When word of the deal leaked, the press was outraged that Capone would get off with such a light sentence.

Capone went into the courtroom on June 16 a fairly happy man. When Capone pleaded guilty, Judge Wilkerson adjourned the hearing until June 30. Capone told the press he was entertaining offers from the movie studios to make a film of his life. He was in excellent spirits when he appeared for sentencing in front of Wilkerson at the end of the month.

Judge James Wilkerson (Chicago Tribune)

Judge Wilkerson had a little surprise for Al. "The parties to a criminal case may not stipulate as to the judgment to be entered," Wilkerson said firmly. He made it quite clear that while he would listen to Johnson’s recommendation, he was not bound to go along with it. "It is time for somebody to impress upon the defendant that it is utterly impossible to bargain with a federal court." It was a shock to Capone.   The deal, the plea bargain was kaput and Al was clearly worried.  Capone was allowed to withdraw his guilty plea and a trial was scheduled for October 6.

Capone spent his summer of freedom in his old hideout in Lansing, Michigan, seemingly resigned to the trial.  However, behind the scenes his organization had procured the list of prospective jurors and began bribing them by every means possible.

Wilson  got word of the bribery and went with Johnson to Judge Wilkerson with the evidence that Capone’s gang was bribing and threatening the potential jurors.   Judge Wilkerson was neither surprised nor concerned.  "Bring your case to court as planned, gentlemen," he told them confidently.  "Leave the rest to me."

Capone before trial  (Brown Bros)

On October 6, 1931, fourteen detectives escorted Capone to the Federal Court Building.   Security was very, very tight.  Capone was brought in through a tunnel to a freight elevator.

The crime czar was well dressed in a conservative blue serge suit.  No pinkie rings or any other gaudy gangster jewelry this time. Every major newspaper had dispatched its top talent.  It was the "Who's Who" of  newspaper journalism.   The question was posed to Al repeatedly, "Are you worried?"

"Worried?" Capone answered with a smile, "Well, who wouldn't be?"   As Bergreen notes: " At that moment, however, he was feeling quite confident.   He assumed that his organization had gotten to the jury and all that was required of him was to show up in court each day, appearing polite and respectful, until his inevitable acquittal.  And even then he would be sure to act magnanimous and tell the press that there were no hard feelings on his part, he knew the government boys were just doing their job."

The government team consisted of U.S. Attorney George E. Q. Johnson, a tall man with gold-rimmed glasses, and his prosecutors Samuel Clawson, Jacob Grossman, Dwight Green and William Froelich.  One journalist compared Johnson and Capone: "Capone's thick-featured face, the roll of flesh at the back of his neck, presents a contrast to the attorney's lean face, his shock of gray hair, and his general appearance of wiriness."

Judge Wilkerson entered the courtroom.  He wore no robes over his dark suit.   "Judge Edwards has another trial commencing today," he announced. "Go to his courtroom and bring me the entire panel of jurors.  Take my entire panel to Judge Edwards."  Everyone was shocked, but no one more than Capone and his lawyer Michael Ahern.  The new panel of jurors, most of whom were white men from rural areas, had never appeared on any list of Capone's and had never been approached for bribery.  These jurors would be sequestered at night so that the Capone mob couldn't get to them.

On October 17, Johnson gave his final summation to a jury composed of men with farm backgrounds like his own.  After his opening statement, he turned his attention to Capone himself.  "I have been a little bewildered in this case at the manner in which the defense has attempted to weave a halo of mystery and romance around the head of this man.  Who is he?  Who is this man who during the years that we have considered here has so lavishly expended what he claims to be almost half a million dollars?  Is he the little boy out of the Second Reader, who succeeded in finding a pot of gold at the end of the rainbow, that he has been spending so lavishly, or maybe, as his counsel says, is he Robin Hood?  But was it Robin Hood in this case who bought $8,000 worth of diamond belt buckles to give to the unemployed?  No. Was it Robin Hood in this case who paid a meat bill of $6,500?  Did that go to the unemployed?   No, it went to the house on Palm Island.  Did he buy these $27 shirts to protect the shivering men who sleep under Wacker Drive at night?  No.

"At any time, at any place, has this defendant ever appeared in a reputable business?  Has there appeared a single instance of contact with a reputable business?   What a picture we have in this case: no income, but diamond belt buckles, twenty-seven- dollar shirts, furnishings for his home -- $116,000 that is not deductible from his income.  And yet counsel comes here and argues to you that the man has no income!"

Late Saturday night, October 17, 1931, after nine hours of discussion, the jury completed its deliberation and found Capone guilty of some counts, but not all counts of tax evasion.  The following Saturday, Judge Wilkerson sentenced Capone to eleven years, $50,000 in fines and court costs of another $30,000. Bail was denied and Capone would be led to the Cook County Jail to await eventual removal to a federal penitentiary.

"Capone tried to smile again," said the New York Times, "but the smile was bitter.  He licked his fat lips.  He jiggled on his feet.   His tongue moved in his cheeks.  He was trying to be nonchalant, but he looked as if he must have felt --ready to give way to an outburst of anger.  It was a smashing blow to the massive gang chief.  His clumsy fingers, tightly locked behind his back, twitched and twisted."

As Capone left the courtroom, an official of the Internal Revenue Service slapped liens on his property so that the government could satisfy its tax claims. Capone lost his temper and tried to attack the man, but was restrained by the marshals who had him in custody.

Capone's appeal (Chicago Sun-Times)

"Well, I’m on my way to do eleven years," he said, looking at Ness. "I’ve got to do it, that’s all. I’m not sore at anybody. Some people are lucky. I wasn’t. There was too much overhead in my business anyhow, paying off all the time and replacing trucks and breweries. They ought to make it legitimate."

"If it was legitimate, you certainly wouldn’t want anything to do with it," he told Capone as he walked away, seeing him for the last time.