The next day began a long process to establish through expenditures and other means the defendant’s substantial income.
Florida friend Parker Henderson talked of picking up Western Union money orders addressed to “Albert Costa” and cashing them for Capone, the money wired by Jack Guzik’s brother and other Outfit guys. Henderson told how he’d helped Al buy his mansion in Mae’s name. He recalled various renovations made to the Palm Island place—$4,000 swimming pool, $3,000 perimeter fence with iron gate, thousands in interior decoration and landscaping.
A clerk from the Metropole Hotel took the stand, going through a record of what Capone spent—$1,500 here, $1,633 there, all of it in cash. Ahern and Fink protested—the trial was to establish income, not expenditures. But Wilkerson said, “I presume that what he paid out he must have taken in.”
The defense was right: expenditures made decidedly circumstantial evidence, entered because the government’s case lacked actual documentation of Capone’s income. Yet three trial days focused on Al Capone’s spending, in a cavalcade of excess designed to impress the jury and tantalize the press.
The unsophisticated, Depression-era jurors listened in awe to tales of Capone’s high living. Where their yearly phone bills were perhaps $36 (if they owned a phone at all), Capone had in 1929 spent $3,141.50. They literally gasped when they heard Capone spent $2 on collars and $25 on shirts. They took a special interest in the thirty custom belt buckles riddled with diamonds Capone gave out as Christmas presents.
Small businessmen, store clerks, and tailors trooped into court. A salesman from Marshall Field’s described the four pairs of fine silk underwear Capone purchased for $12 each. Fink asked if they were warm.
“No,” the salesman said, “it is just a nice suit of underwear.”
Fink asked what they cost now. The salesman said the price had dropped two dollars. To Damon Runyon, the defense attorney seemed to be shopping for himself.
Other attempts at cross-examining these witnesses went nowhere. One workman said Mae Capone paid him $500—“She peeled the money off a roll that was big enough to choke an ox.”
Fink asked acidly, “How big an ox would it choke?”
“Well, it was as big as your fist,” came the unhelpful reply.
No better was Fink’s questioning of a butcher who’d been paid $6,500 in weekly installments of $200 or $250.
“You don’t think Al ate all this meat himself, do you?”
“One man couldn’t eat all that. I didn’t say that Al did eat it.”
Fink objected to prosecutors introducing Capone’s phone bills for 1930 and half of 1931, periods not covered under the indictment, asking what those years could possibly have to do with this case.
Coprosecutor Grossman said, “The bill payments show that money was available to pay taxes.”
Wilkerson, not exactly impartial, jumped in: “And they used it to pay telephone bills with.”
“We were trying to pay the taxes,” Fink said with a smile, “and apparently the government wouldn’t take them, and had us indicted.”
Wilkerson smiled back at him. “Because you did not want to pay enough.”
Between days in court, Capone had his tailor come around to the Lexington to make two lightweight summer suits for his next Florida trip. Bodyguard Frankie Rio saw this as detached from reality: “You don’t need to be ordering fancy duds. You’re going to prison; why don’t you have a suit made with stripes on it?”
“The hell I am,” Al said. “I’m going to Florida for a nice, long rest and I need some new clothes before I go.”
Capone carried this confidence with him into court. He remained in a jovial mood, munching on peppermint candies as if watching a picture show, smiling at evidence he found amusing. To the Tribune, he seemed to be “enjoying himself immensely”—trading smiles with the Florida witnesses, “former workmen, contractors, butcher, baker and others.”
He got annoyed only once, at the contractor who had built the Palm Island pier and boathouse—still owed $125 but nervous about collecting, frightened by Capone’s associates. Capone seemed to take this as an insult, besmirching his reputation for always paying his debts.
Federal agents had been keeping an eye on sharply dressed, briefcase-carrying bodyguard D’Andrea—his gold-rimmed glasses didn’t fool them. On October 11, tax unit man Mike Malone noticed the bulge of a probable shoulder-holstered weapon. At the noon recess, signaling Frank Wilson, Malone followed D’Andrea out. They grabbed the bodyguard and found a .38 under his arm.
Ahern, keen on keeping as much gangster stigma away from the defense as possible, claimed D’Andrea was armed because he was a deputy bailiff of the Municipal Court. Was was the correct word—his appointment had expired.
But Wilkerson had watched D’Andrea throughout the trial, seeing how the bodyguard intimidated witnesses with his sinister stare. At a later hearing, the judge found D’Andrea in contempt of court and had him locked up for six months—not so much for packing a gun as for trying to influence testimony.
“The pistol,” Wilkerson said, “was far less serious than the perjury.”
Bald beanpole Fred Ries—back from his Secret Six–funded South American vacation—took the stand on October 13, holding everyone’s attention, particularly Capone’s.
Ries had been the key witness at Jack Guzik’s trial, his testimony linking the defendant to profits from three Cicero gambling joints. Ries said he’d worked as cashier in each establishment, converting the daily profits into cashier’s checks, which he then turned over to Guzik’s hirelings, Pete Penovich and Bobby Barton. Sometimes he’d given checks to Guzik directly. Intelligence Unit agents had located dozens of these checks on file at a Cicero bank, giving the government direct proof of Guzik’s untaxed income.
At the earlier trial, Ries had identified his “bosses” as “Mr. Guzik, Al Brown, Frank Nitti and Ralph Brown. I have heard since that the name of Al Brown is Al Capone,” he added, “and I know Ralph Brown by the name of Ralph Capone.”
But Ries knew of Al Capone’s role only through hearsay; he’d had direct dealings with Guzik and Ralph, never taking orders from, or giving any money to, Al. Once again, George Johnson and his assistants relied on circumstantial evidence to link Capone with these sources of income.
Grossman questioned the stoic witness, who betrayed no fear, his answers steady. Ries recalled one day in early 1927 when Ralph came in with Pete Penovich, announcing the place was under new management. Around the same time, Ries saw Capone speaking with Guzik in the joint’s telegraph office.
“And was [this] a part of the main establishment where the public usually congregated?” Grossman asked.
“The telegraph office was right next to the main office,” Ries replied. “The public didn’t congregate at the telegraph office as a rule, no, nobody is supposed to be there, no outsiders.”
“No outsiders,” Grossman repeated. “Is that the first time you saw the defendant Capone at that place?”
“Yes sir.”
The inference was clear—Guzik and the Capone brothers had muscled in on the joint, leaving them entitled to its profits. Grossman tried to make this explicit by having Ries recount a conversation with the casino’s previous manager, who’d claimed “Al and his bunch declared themselves in today.” But the defense objected to this secondhand testimony.
“Just what are they trying to prove?” Fink asked. “What is the purpose of this?”
“They are trying to prove . . . that Capone had an interest,” replied the judge.
“And they are trying to do it by hearsay.”
“By hearsay, yes.”
Still, Wilkerson hesitated to throw the statement out, even though he seemed to know it was inadmissible. Grossman saved him the trouble by offering to withdraw it.
“It is too near the line,” Wilkerson said.
“Very well,” Grossman said, “I will withdraw it.”
Grossman didn’t need it anyway, because he had som
ething much better. He presented the judge with forty-four cashier’s checks (purchased by Ries with gambling profits) for admission into evidence. Most had already been used by the government as proof of Guzik’s income, but would now be held against Capone, one defendant swapped for another.
“We,” Grossman explained, “have been establishing here right along the business relationship of Jack Guzik and the defendant Capone. . . . We find Jack Guzik at the place Shumway testified about looking at the daily sheets. . . . We find Guzik at the Lexington, at the Metropole and we find him at this place with the defendant under circumstances when they weren’t just outsiders. . . . And we show Guzik at some of the places from which this money was sent, such as the Metropole and Lexington.”
The Mattingly letter, too, described Capone as having three partners. The government intended to show Guzik was among them.
Over defense objections, Wilkerson ruled the checks admissible. The lack of any direct proof against Capone, he said, forced the government to use “negative evidence,” which showed “this defendant had undertaken to build around him a stone wall so that those who sought to learn his condition as to financial affairs would find him inaccessible.”
The government was building “a chain of circumstances,” Wilkerson said, adding, “I think it is proper evidence.”
Ries described how he’d purchased these checks under various aliases, most frequently “J. C. Dunbar.” Sometimes he’d endorsed them himself before giving them to Barton, Penovich, or Guzik. He couldn’t say where the checks had gone after that.
“Of course,” Fink said, “we object to them as incompetent and irrelevant.”
“I think they are connected with the enterprises of the defendant,” Wilkerson said. “They have some connection.”
“The only evidence of any connection on the part of the defendant—”
Wilkerson cut him off: “His name appears on one of them.”
“On one of these?” Ahern interjected.
“Yes.”
At the defense table, Capone’s head jerked up. He’d often insisted he never signed checks, at least not in his own name. Yet for the first time, the government had produced a document with Capone’s surname—let alone his signature—on it.
Fink gamely tried to recover. “Well,” he asked the judge, “what does that prove?”
Grossman gave the check to Fink. Purchased June 1, 1927, for $2,500, it had been made out to Ries’s favorite alias, J. C. Dunbar, with Dunbar’s endorsement. Whether Ries had signed Dunbar’s name, as he often did, or someone else, remained unclear.
Below Dunbar’s signature, the name “Al Capone” had been written in pencil. Stamps on the back showed the check had been deposited into the account of the Laramie Kennel Club, another name for the Hawthorne Kennel Club—the Cicero dog track where Capone was a silent partner with Frank Nitto and E. J. O’Hare.
As damning as this seemed, the check raised several unanswered questions. Why would a second signature from Capone be required, if the payee—J. C. Dunbar—had already signed it? Under what circumstance would Capone—who at that time was at the height of his power, surrounded by people keeping him insulated from illegal activities—find himself depositing a check into a racetrack’s account?
If Capone had deposited the check, why didn’t he use one of his aliases—Al Brown, Albert Costa? Why had he used the nickname “Al,” when he typically used his full first name—Alphonse—on those rare occasions when he signed official documents? And why would he sign the check in pencil instead of pen? Every teller’s window surely had a pen.
But the defense largely ignored the check on cross-examination. Instead, Michael Ahern got Ries to admit he’d seen Capone only twice, once each in two of three establishments. Then Ahern got creative, scrambling to find some reason why Capone would be allowed in the back office if he didn’t own the place.
Suppose, Ahern said, a gambler like Capone made a very large bet on a single horse. If word got around, presumably people would think he had inside information. Wouldn’t the owner let him make that bet in back, in private, to keep it secret from the other customers?
“Well,” Ries said, “we didn’t do it.”
“It is sometimes done,” Ahern pressed, “is it not?”
“We didn’t do it out there.”
“No one ever did it?”
“The bets were all over the counter.”
Ahern then established Ries had taken no orders from the brothers Capone. But he hurt his own case by asking whether Guzik had told Ries “that no money was to be given to Alphonse Capone, or Penovich?”
“He didn’t mention Alphonse Capone,” Ries said. “He mentioned Al.”
“He said ‘Al’?”
“Yes sir.”
“You did not know what Al he meant?”
“I didn’t know what Al he meant.”
“No.”
Ahern had won a small victory, creating some shred of doubt about the identity of this “Al”—until, that is, Ries kept talking.
“But I figured who he meant.”
“You thought he meant the defendant?”
“Yes sir.”
More circumstantial evidence of the Capone-Guzik partnership, courtesy of the defense.
Finally, Ahern turned his attention to the signed check. Ries admitted he hadn’t given the check to Capone; he couldn’t remember who he’d given it to—maybe Barton or Penovich, but not Guzik. In the gambling joint, or at the bank? Ries couldn’t recall.
Ahern asked, “Do you know how the name Al Capone got on the back here?”
“No sir.”
“Well this check was deposited apparently to the credit of the Laramie Kennel Club, was it not, the same check I showed you before?”
“According to the stamp on it.”
And Ahern moved on to another check.
The morning session closed with a prosecution handwriting expert comparing the signature on the check to one on a safety deposit box form. He found they matched.
After lunch, George E. Q. Johnson—silent throughout the trial thus far—stood and intoned, “Your honor, at this time the government rests its case.”
Just like in the movies, reporters flew to their feet and ran to the telephones. Capone and his attorneys huddled as a murmuring shock wave rolled across the courtroom. Several name witnesses, including Johnny Torrio, would not be testifying after all.
The judge said to Fink and Ahern, “Are you ready to proceed?”
All the lawyers approached the bench; the jury was removed.
Fink, clearly caught flat-footed, said, “Well, if your honor please, this is a kind of a surprise. We would like a little time to get ready for our defense.”
“We have a jury confined here,” Wilkerson reminded Fink and Ahern. “I think the limit of the continuance will be until ten o’clock tomorrow morning.”
“Give us a couple of days,” Fink begged. “The government has been preparing this case since October 17, 1928. I put it to your sense of fairness.”
Ahern said, “Your honor, there has been no proof of income established by the government.”
“Well,” the judge replied, “if you take that view, then the case is simple.”
And he told them to prepare to present their defense at ten the next morning.
Capone with attorney Michael Ahern.
(Courtesy of the Boston Public Library, Leslie Jones Collection.)
Capone’s jury, with Arthur Prochno standing (third from right).
(Library of Congress.)
Twenty-Seven
October 1931
As the nation followed every twist and turn of Capone’s trial, other gangsters quietly carried on his work.
On October 8, one of Capone’s lieutenants—handsome thirty-five-year-old Nick Juffra—stepped out of his apartment building in placid Jackson Park, just up the block from where Torrio had been shot.
More than seven years earlier, Juffra had been arrested with Torrio i
n the Sieben Brewery raid, after Dean O’Banion double-crossed his Italian rival.
At the time, “Juffra was the most persistent offender of all the early beer runners,” according to sociologist John Landesco. “He had been arrested twenty-four times between the advent of Prohibition and the Sieben Brewery case.” On one of those busts, Juffra had been caught hauling beer with Joe Fusco and Bert Delaney, back before both men became heads of Capone’s beer empire.
Since then, Juffra had managed to stay out of custody, and gave every appearance of having gone legit. But the Tribune later pegged him as “the head of Al Capone’s beer delivery service,” where he worked under his longtime compatriot, Joe Fusco. That, and the earlier arrest, earned Juffra the distinction of being named along with Capone in the massive Prohibition conspiracy indictment.
As Juffra exited his building, he ran into one of his neighbors—Eliot Ness, a few blocks south of the Paxton Avenue apartment he shared with Edna. Ness had brought two Untouchables with him, and together they placed Juffra under arrest. They hauled the bootlegger back to the Federal Building and left him locked up despite his protests.
“What’s the idea?” Juffra complained. “I’ve been going straight for the last eight years.”
Ness knew better.
Eager to hit the mob however he could, Ness would lock up any Capone man crossing his path, all the better to put the gang on the spot and stretch its already thinning resources. This harassment would continue after Juffra’s release, when the hood was arrested again and turned back over to the Untouchables. Federal officials considered deporting him to Italy.
To the Tribune, Ness gave a brief statement explaining Juffra’s arrest, mentioning the bootlegger’s partnership with Joe Fusco. But he failed to comment on events occurring elsewhere in the Federal Building, where the fate of his nemesis hung in the balance.
Scarface and the Untouchable Page 43
