Scarface and the Untouchable

by Max Allan Collins

  But Ness could find few men fitting all these criteria. Each agent he selected was more than thirty years old; two were in their forties, and at least three had wives. A few had serious character flaws.

  Still, Ness was in no position to be choosy—he had to make do with what the Bureau could spare, which forced him to compromise. Left with imperfect materials, he built an imperfect team, one that would take time to refine.

  Joe Leeson was thirty-two, married with three children, but everything else about him fit Ness’s ideal agent. Born in Indiana, Leeson was soft-spoken and reserved, a face in the crowd despite his blue eyes and reddish brown hair. In just two years with the Prohibition Bureau, Leeson had racked up an enviable record, proving his integrity and ability.

  “Mr. Leeson has been one of the best agents that has ever worked under my direction in the Detroit office,” his superior gushed that winter. “He has been a hardworking, conscientious agent and he at all times gave the best that was in him in the interest of the Government.”

  A natural undercover man, Leeson won fame throughout the Bureau for his talents as a driver. When tailing a suspect, he could snake through traffic, slipping between other cars while keeping himself well hidden. He didn’t play the stock market, didn’t gamble, and didn’t buy things he couldn’t afford—he had never even opened a bank account. In short, Ness could trust him. And he probably came highly recommended: Leeson’s brother-in-law was Don Kooken, Ness’s partner on the Chicago Heights case.

  Ness also sought the services of a “pencil detective,” someone who could decipher documents seized in raids and find the hidden clues that would lead to Capone. For this he chose Lyle Bishop Chapman—“L.B.,” to his friends—a forty-year-old special agent from Los Angeles who’d been serving in Indianapolis.

  Tall, handsome, his slicked-back brown hair graying at the temples, the blue-eyed Chapman had a deep, booming voice that “hits you like a bass drum,” as one reporter wrote. On paper, Chapman—who had studied chemistry and played football at Colgate University—seemed exactly the kind of brainy yet brawny crimefighter Ness sought.

  Before joining the Prohibition Bureau, Chapman had worked for the Intelligence Unit, learning how to build complex cases out of minute financial details. As a Prohibition agent, he kept a scrapbook on known bootleggers—“a veritable registry of rum runners,” according to the Los Angeles Times—that he used time and again to win convictions.

  “It goes without saying that Mr. Chapman is a very intelligent and capable investigator,” a superior of his observed, “when he wishes to apply himself diligently to his work.”

  That, as Ness would soon discover, was precisely Chapman’s problem—he treated being a special agent like a nine-to-five job. When an undercover assignment kept him out late, he moaned and griped, demanding time off to catch up on his sleep.

  One special agent claimed other agents didn’t want to work with Chapman—L.B., despite his obvious abilities, was lazy. The man needed to get it “out of his head that all the women in the country are crazy about him,” and that “somebody is always abusing him.”

  Chapman routinely asked for raises in pay, leading one official to suspect, “He is inclined to live beyond his means, and, therefore, finds himself in almost continual financial embarrassment.” Both traits should have disqualified him from the Capone squad. But Ness needed Chapman’s pen-and-pencil prowess.

  Why Ness chose William Jennings Gardner is less clear. The forty-five-year-old regular Prohibition agent, then stationed in Syracuse, New York, had also played college football. At a strapping six foot one and nearly two hundred pounds, he brought much-needed muscle to the team.

  But Gardner’s record with the Prohibition Bureau, where he’d served off and on since 1926, offered little to recommend him. Superiors found him “quite lacking in initiative” and displaying no “investigative turn of mind.” He had resigned or been dropped from the service multiple times, once because of an anonymous letter accusing him of corruption.

  His turbulent home life, and his fractious marriage to a Michigan heiress, kept intruding into his career. Mrs. Gardner didn’t like her husband’s work. After resigning from the Bureau over trouble at home, his return to the job prompted “one ‘Hellacious’ fight” that set the stage for the couple’s second divorce.

  The son of a white Civil War veteran and a Chippewa woman, Gardner had received his education in Pennsylvania at the Carlisle Indian Industrial School—a radical, experimental boarding school founded on the belief that Native Americans could survive only if they left their culture far behind.

  “Kill the Indian,” went the founder’s motto, “save the man.”

  Carlisle cut its students’ hair, forced them to speak English, and kept them from their families for years at a time, all with the goal of making them white in everything but skin color. As an adult, Gardner worked to keep up this paleface facade, making a point of dressing well, sometimes wearing a matinee-idol mustache. But nothing could hide the copper-toned skin of his mother’s side of the family.

  The school’s football team achieved national fame in the early 1900s. At a time when the game was muddy, bloody, and often deadly, Carlisle elevated the sport, introducing such innovations as the forward pass, revolutionizing the game. Gardner became one of their star players—a powerhouse runner, nimble, determined, unstoppable.

  His coach recalled one game where Gardner, after having “his leg wrenched and his jaw broken . . . played on the finish without telling me a word about it, afraid I would send in a substitute.” Knute Rockne wrote Gardner’s “down-the-field play . . . was as fine as I’ve ever seen—a thing of beauty.”

  Gardner would never recapture the glory of his football days. His life after Carlisle was a series of promising opportunities going nowhere. He was accepted to West Point but didn’t attend. He earned a law degree and practiced for several years, but the Great War put his legal career on hold.

  He served with distinction on the Western Front, but a mustard gas attack left him hospitalized for a year, his lungs blistered, burned, and permanently damaged. When Gardner got out, he tried to resume his law practice, but gave up after poor health forced him to seek a kinder climate. Eventually, like many a failure and reject, he wound up with the Prohibition Bureau.

  Ness and Gardner had briefly served together in 1928, as members of George “Hardboiled” Golding’s squad in Chicago. Gardner had proven himself a willing soldier, even taking part in the disastrous raid when special agents shot bailiff William Beatty.

  “We are quite busy showing these natives that the law of the land is supreme,” Gardner wrote to Washington after the raid. “Some of them are hard to convince.”

  That Gardner took pride in subduing hostile “natives” on behalf of his government suggests Carlisle’s influence.

  Alexander Jamie thought highly of Gardner, and may have suggested him for the Capone squad. But Gardner was no longer the man he’d been, his body beaten and battered on the gridiron and poisoned in the trenches, his very identity broken down and reshaped.

  By late December, the four additional agents had all assembled in Chicago. The Detroit office resisted having to give up Leeson, but no one raised objections to losing Chapman or Gardner. George E. Q. Johnson secured the men their own office on the fifth floor of the Transportation Building, away from the rest of the special agents and files already breached at least once.

  Maurice Seager, serving as Ness’s second in command, wrote his family on December 28, saying the Prohibition Bureau kept the team well supplied and armed to the teeth. Their three Cadillacs, he reported, were loaded down with a police radio, bulletproof windows, armor plating, and a full complement of weapons—machine guns, sawed-off shotguns, handguns, and grenades.

  The men were hard-bitten and “ready to go at any time,” Seager said with obvious pride. He and his fellow agents saw their “share of blood & broken bones every day,” which served to “relieve the monotony of life somewhat.�
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  But not everyone felt so gung-ho.

  “I remember my knees shook like jelly when I got the orders telling me what was up,” Lyle Chapman recalled. “Frankly, I pondered how to get out of it.”

  Meeting Ness calmed Chapman’s fears somewhat, but the pencil man wouldn’t stop searching for an escape route.

  Like the tax investigators, Ness’s agents faced the nearly insurmountable challenge of proving the obvious—everyone knew Capone was a bootlegger; he’d admitted as much in the press. But charging him with liquor crimes seemed all but hopeless, thanks to holes in the dry law big enough to drive a beer truck through.

  The Eighteenth Amendment prohibited exactly three things: the manufacture of beverage alcohol, the transportation of beverage alcohol, and the sale of beverage alcohol. But Capone had carefully insulated himself, never operating his own stills, tending his own bars, or making his own deliveries.

  And unlike brother Ralph, Al knew not to discuss booze orders over tapped phone lines.

  So, rather than go after Capone directly, Ness and his team would focus on exposing his organization. Thanks to the Bureau’s Lexington Hotel wiretap, they already knew of a strategy meeting Capone attended in June 1930 with the top brass in the beer business: Joe “Shrinking Violet” Fusco, Bert Delaney, and George Howlett.

  Fusco directly managed the brewing, sale, and delivery of every beer barrel the Outfit sold. Delaney specialized in finding buildings to house illicit breweries or distilleries. Howlett signed the leases for each operation, acting as flamboyant front man, living the life of a socialite, supposedly in the printing business. Nobody asked too many questions about garages and warehouses he rented in out-of-the-way parts of town.

  The special agents stood a good chance of getting hard evidence against Fusco, Delaney, and Howlett. And if they could prove these lieutenants had taken a direct hand in bootlegging, they could use the Lexington Hotel meeting to tie Capone in, building a bridge between the gangster and his crimes.

  That meant charging Capone with conspiring to violate the Prohibition law, rather than simply violating it. He would face a maximum of two years in prison, as opposed to five for each Prohibition offense. But with the limited legal tools at their disposal, this was the best Ness’s squad could hope for.

  By early January, the special agents were tapping the phone lines of every Capone haunt they could locate. One such target, a sugar warehouse and distribution center, sat across an alley from the Institute for Juvenile Research, where Ness’s old friend (and co-inventor of the lie detector) John Larson worked.

  Ness showed up one Saturday afternoon with an electrician, hoping to tap the line on the sugar building and use Larson’s lab as a listening post. This turned out to be technically impossible, and Ness had to abandon the notion. But before he could leave, he got an urgent phone call—someone had seen two men drive up to the sugar building in a truck carrying a prisoner, bound, gagged, and bleeding from the mouth.

  Ness hung up and looked at Larson.

  “Doc,” he asked, calm, quiet, “got a rod?”

  “Hell, no,” Larson said.

  Ness turned to the only other man in the lab, one of Larson’s fellow scientists.

  “Jim,” Ness asked, “got a rod?”

  “No, sir.”

  Ness avoided carrying a weapon whenever he could.

  “They won’t be so quick to shoot at you,” he believed, “if they know you can’t shoot back.”

  A diplomat at heart, he preferred having adversaries underestimate him, lulling them into inaction. Pulling a gun said he’d lost control of the situation.

  But going on a raid with only a pair of unarmed scientists as backup was another thing entirely.

  Still, Ness didn’t hesitate. “Let’s go,” he said.

  He led Larson and Jim across the alley into the sugar building. They found two men leaning against piled sacks of sugar, looking like gangsters, not warehouse workers. A hand thrust deep in his pocket, feigning a revolver, Ness kept them covered with his pointing finger—or was it a rare instance of the Untouchable actually packing heat? The two scientists did their best to follow suit, pointing their hidden fingers like gun barrels as well.

  The apparent gangsters decided not to call Ness’s bluff, putting up no resistance as the raiders searched the building—no trace of the tied-up prisoner.

  Larson recalled feeling suspicious when he saw some pigeons flying about, as if their roost had just been disturbed. Years later, when the building was demolished, excavators discovered what Larson called “an underground ‘death to rats’ chamber”—apparently the final destination for the man Ness tried to save.

  The squad found more success elsewhere. Ness hoped to tap Capone’s sales office phones, in a hotel on the South Side. Once again, the building presented technical problems making a wiretap impossible.

  But this time, Ness decided to find a way of convincing the mob to move where the special agents could easily listen in. He got word to the gang his men were keeping tabs on the sales office; if they looked out the window at a certain time, they’d see federal agents taking down license plate numbers.

  “I, of course, made good on this promise,” Ness wrote. “The following three days my men were around the hotel doing a lot of conspicuous note taking.”

  The Outfit reacted just as Ness had hoped, by moving the office to the second floor of a garage, where they could drive right inside the building and keep their cars, and their work, hidden. But not from Eliot Ness.

  “In a short period of time I had those telephones tapped,” Ness recalled, “and after a time it became almost impossible for them to deliver beer without a good risk of being knocked off by us.”

  Ness kept his superiors apprised of the squad’s work.

  “After experiencing great difficulty,” he wrote to Washington on January 20, “we have been able to secure telephone taps covering the various headquarters’ spots of the Capone gang and are in a favorable strategical [sic] position to obtain considerable information relative to their workings as soon as operations begin again.”

  Wiretaps revealed the gang had gone temporarily underground.

  “At the present time several forces are brought into play in Chicago,” Ness wrote, “and the operations of the Capone syndicate have for the last few days been absolutely stopped.”

  Capone himself remained on the run, trying to dodge his contempt-of-court charge. From the phone taps Ness knew “Snorky” had briefly stopped in Chicago to redraw the bounds of his empire, but had since disappeared. The squad stayed glued to the taps for any hints to his location.

  But even as they made progress, the unit began to fray. Ulric Berard left the squad almost immediately, for unknown reasons. E. A. Moore apparently failed his civil service test, despite receiving study help from Ness, and also had to be dropped. Subpoenas dragged Leeson and Chapman away from Chicago for weeks at a time, with Chapman traveling all the way to Seattle.

  “Mr. Seager and myself have been greatly handicapped owing to the fact that our small number of men has been drawn upon by court subpoenas,” Ness wrote Washington in a plea for more manpower.

  Dwight Avis, chief of the Special Agency Division, sympathized with Ness, and sent a few agents on a temporary basis. “I am also endeavoring to find an agent or two to assign permanently to you,” Avis wrote.

  But with courts in session around the country, and too few special agents to go around, the prospects for help on the Capone case seemed slim.

  Then, in mid-January, came the sudden disappearance of William Gardner. He had requested thirty days’ leave soon after arriving in Chicago, claiming an attack of chronic bronchitis going back to being gassed in Europe.

  Ness had passed Gardner’s request on to William Froelich, who turned it down. On January 18, Gardner called Seager and threatened to resign if he didn’t get his leave. Soon after, without another word to the office, he vanished.

  “Mr. Gardner recently was paid over
$3000.00 army pay, which was past due,” Ness wrote Avis, “and his wife’s uncle recently died, I understand, leaving her a large fortune, so I assume that Agent Gardner feels he is no longer dependent upon his position in the Bureau of Prohibition.”

  This was hardly the first time Gardner had gone AWOL, Avis replied.

  On February 2, Ness got a newly minted special agent to replace the absent Gardner—Warren E. Stutzman, thirty-one, a former police officer from Pennsylvania. Blue-eyed, bald, with a lampshade mustache, Stutzman had—much like Gardner—bounced in and out of the Bureau for years before becoming a special agent.

  Stutzman was outgoing and energetic, a tireless investigator who never let go of a lead, even if it led him down the wrong path. One superior described him as “an untrained hunting dog” who “invariably would go off at a tangent on matters not pertaining to his assignment.”

  While nothing in Stutzman’s record indicated outright corruption, he was constantly borrowing money from his coworkers, asking how other agents made do on such a meager salary. This struck some as suspicious. The agent was “not lacking in forwardness and brass,” George Golding wrote in 1929, “and is given to making, what I would call, ungentlemanly remarks.”

  But Eliot couldn’t possibly have known his newest team member had a dark secret he’d managed to conceal from the Bureau, which could blow up the entire investigation—Stutzman was a convicted felon. During the Great War, “a youthful drunken escapade” got the seventeen-year-old Stutzman court-martialed for robbery, desertion, and larceny.

  Sentenced to ten years, Stutzman served only a fraction of his time before returning to duty. But his conviction, if uncovered, would make him worse than useless as a federal agent, “because of the possibility of attacks by defense counsel based on his criminal record,” a Treasury official noted. Every piece of evidence Stutzman touched was potentially contaminated by his past.

  Ness also almost lost the pencil detective, so crucial to building a conspiracy case. Chapman seized on the subpoena summoning him to Seattle, asking for a transfer back to Los Angeles. Since he was already on the West Coast, Chapman argued, why not save the government the cost of traveling back to Chicago? His friends and family also sent letters to their senator and congressman, urging them to reach out to the Bureau on L.B.’s behalf.