Scarface and the Untouchable

by Max Allan Collins

CAPONE’S OFFER TO LYLE: Lyle, Dry and Lawless Years, pp. 250–253 (251, “straight from the,” “Then he’ll make”).

  LINGLE INVESTIGATION / LEO BROTHERS: CT, April 3–4, 1931. John Boettiger, “Reveal Capone Plot to Kill 4 Public Figures,” CT, April 21, 1931 (“Al wants to,” “You can tell”). Alan Hynd, “The Inside on the Lingle Murder Capture,” True Detective, April 1931, pp. 20–27, 81–86. Boettiger, Jake Lingle, pp. 201–335. Kobler, Capone, pp. 309–311. Schoenberg, Mr. Capone, pp. 284–285. Helmer and Mattix, Public Enemies, p. 238. Eghigian, After Capone, pp. 167, 469n.

  ALLEGED PLOT TO MURDER JOHNSON, WILSON, ET AL.: CT, December 1, 1930; November 16, 1939 (“gang associate,” “You tell Capone,” “The men have”). John Boettiger, “Reveal Capone Plot to Kill 4 Public Figures,” CT, April 21, 1931 (“It seemed too,” “a carload of,” “to kill some,” “They’re tough birds”). Dillard, “How the U.S. Gov’t,” pp. 55–56. IRS-2, pp. 52–53. John H. Lyle and John J. McPhaul, “How Chicago’s Crime Barons Were Smashed,” Part 1, True Detective, August 1937, pp. 46–49, 120. John H. Lyle and John J. McPhaul, “How Chicago’s Crime Barons Were Smashed,” Part 3, True Detective, October 1937, pp. 90–91. Wilson and Whitman, “Undercover Man,” pp. 15, 80. Frank J. Wilson, Inside the Secret Service, pp. 62–62-A, in Box 12, “Manuscripts—Inside the Secret Service by Frank J. Wilson” folder, FJW (62-A, “shoot him on,” “that a posse”). Lyle, Dry and Lawless Years, pp. 20, 249. Wilson and Day, Special Agent, p. 45 (“No. It’s best”). Kobler, Capone, p. 326. Spiering, Man Who Got Capone, p. 138 (“much disgusted,” “By that breach”). “Prohibition: George E. Q. Johnson—About His Father, Who Successfully Won Tax Evasion Convictions of Al Capone,” Onlinefootage.tv, 00:52, 1999, http://www.onlinefootage.tv/stock-video-footage/7634/prohibition-george-e-q-johnson-about-his-father-who-successfully-won-tax-evasion-convictions-of-al-capone (accessed April 25, 2016).

  Wilson later claimed O’Hare told him directly of the plot (Wilson and Whitman, “Undercover Man,” p. 15; Wilson and Day, Special Agent, p. 44). His summary memo of the Capone case mentions he spoke with “a very confidential source,” which could be a reference to Rogers or O’Hare (IRS-2, pp. 51–52). Although it’s possible O’Hare contacted Wilson in person, the CT’s version, with Rogers getting the tip, seems more credible, given Wilson’s tendency to falsely place himself at the center of the action (see, for example, Eig, Get Capone, p. 275). John Lyle (in Lyle and McPhaul, “How Chicago’s Crime Barons,” pt. 3, pp. 90–91) describes Madden as the recipient of the tip, which is consistent with the CT article.

  Irey’s account of the Capone case places the murder plot after Capone’s indictment in June 1931, and claims he, Wilson, and Madden were the only targets (Irey and Slocum, Tax Dodgers, p. 57). The former is demonstrably false, and no reliable evidence suggests the latter is true (see Schoenberg, Mr. Capone, p. 296).

  Some sources, apparently seeking to synthesize Wilson’s accounts of the Capone case (in which he learns of the plot directly from O’Hare) and Irey’s (in which Wilson learns of the plot from an undercover Treasury agent), suggest Wilson received corroboration of the plot from Intelligence Unit special agent Michael Malone, who had penetrated the Capone outfit while posing as a gangster (Spiering, Man Who Got Capone, pp. 135–136; Eig, Get Capone, pp. 300–301). The best evidence suggests, however, Malone was not yet working undercover in November 1930. Wilson’s summary report of the Capone case mentions he summoned Malone to Chicago in October 1930 to help locate Frank Nitto (IRS-2, p. 49). Even an undercover agent of Malone’s legendary skill would have a hard time working his way into the Outfit to such a degree that they would let him in on such a sensitive matter as the murder of government officials—in under a month. And no matter how long Malone stayed undercover, the Outfit would hardly let an outsider ever hear of such a plot (see Schoenberg, Mr. Capone, pp. 296–297).

  Wilson’s memo and other IRS documents strongly suggest Malone’s undercover work began in late March 1931 and concerned Capone-connected brothels in Stickney, further indicating he wasn’t in a position to hear of the plot in November 1930 (IRS-1, p. 8; IRS-2, pp. 27–28; IRS-3). This resolves a chronological problem in Irey’s account of the case, which strains credulity by having Malone (or “Pat O’Rourke,” as Irey and Slocum refer to him) risk blowing his cover by slipping out of his gangster disguise to help track down Frank Nitto (Irey and Slocum, Tax Dodgers, pp. 48–50). That Malone was not yet undercover in October 1930 is much more likely.

  Wilson also gives a different, and somewhat more flattering, version of how his wife, Judith, learned the truth about his work in Wilson and Whitman, “Undercover Man,” p. 80. Wilson has the wife of the other agent buy up all copies of the Tribune at the local newsstand to keep Judith from seeing them. But he eventually breaks down and tells her the truth, which Judith accepts “with amazing calm.” This appears designed to make him seem more sympathetic. The difference in these two accounts further shows Wilson’s slippery relationship with the truth.

  UNANSWERED QUESTIONS ABOUT MURDER PLOT: CT, November 19, 1930; November 16, 1939 (“A theory held”). Pasley, Al Capone, pp. 234–236. William G. Shepherd, “Can Capone Beat Washington, Too?” Collier’s, October 10, 1931, p. 44. Lyle and McPhaul, “How Chicago’s Crime Barons,” pt. 3, p. 91. Lyle, Dry and Lawless Years, pp. 20, 249. Allsop, Bootleggers, pp. 127–128, 168. Schoenberg, Mr. Capone, pp. 296–297.

  Schoenberg suggests the Outfit fed the false story of the murder plot to undercover Intelligence Unit agent Michael Malone to “get the opposition chasing phantoms and their tails” (Mr. Capone, p. 297). But the best evidence suggests the story came first from E. J. O’Hare, with Malone not yet undercover, rendering Schoenberg’s theory moot. His analysis of the improbability of the plot, however—and the unlikelihood that anyone in the Outfit would have leaked it except on purpose—seems spot-on.

  FRUSTRATION WITH JOHNSON / MITCHELL SENDS FROELICH: Personal History, April 11, 1929; John Marshall to William Froelich, April 11, 1929, both in William J. Froelich OPF/ATF. WP, November 22, 1930, in FBI-AC. CT, November 21, 1930; December 21, 1930 (“Yes, George E.Q.”); June 13, 1931. CHE, June 13, 1931. Dillard, “How the U.S. Gov’t,” pp. 54–55. IRS-2, p. 51. Calder, Origins and Development, pp. 139–141, 143, 249n41 (“I think it”), 260n77 (“a chance appears,” “A Florida jury”). Eig, Get Capone, pp. 294–295.

  JAMIE JOINS SECRET SIX: Robert Isham Randolph to James M. Doran, June 17, 1930; George E. Q. Johnson to the Attorney General, July 26, 1930; Howard T. Jones to Alexander G. Jamie, October 29, 1930, all in Alexander Jamie Justice Dept. OPF. Alexander G. Jamie to Henry Morgenthau Jr., January 4, 1936 [actually 1937]; C. L. Rice to R. E. Wood, July 5, 1938; Robert Isham Randolph to Robert E. Wood, July 7, 1938 (“Thousand dollar bills”); Alexander G. Jamie to Henry Morgenthau Jr., September 1, 1938, all in Alexander Jamie Treasury Dept. OPF. Resignation Form for Use of Field Service, November 6, 1930, in Edna S. Ness OPF. Kansas City Star, November 1, 1931, in ENPS, Roll 1, Scrapbook 1. Louis D. Nichols, memo to John B. Little, n.d.; John B. Little, memorandum for the Director, September 7, 1933, both in FBI-RIR. Calder, Origins and Development, pp. 140, 143.

  NESS MADE HEAD OF CAPONE SQUAD: Alexander G. Jamie to the Director of Prohibition, October 22, 1930, in Alexander Jamie Justice Dept. OPF (“Mr. Ness is”). CT, November 11, 1930. P. T. Sowell, interview with William J. Froelich, November 21, 1933; Melvin Purvis to J. Edgar Hoover, November 28, 1933, both in FBI-ENA. CDN, January 2, 1936, in ENPS, Roll 1, Scrapbook 2, p. 19. South End News, January 9, 1936, in ENPS, Roll 1, Scrapbook 2, p. 20. Service record card, n.d., in Eliot Ness OPF. Ness MS., p. 9, in ENPS, Roll 1, Folder 2. Ness and Fraley, The Untouchables, pp. 17–25.

  A letter from Johnson to the director of Prohibition refers to the director’s “letter of November 29, 1930 requesting the names of the agents desired to do special work under my direction in Chicago.” This suggests the plan got under way in late November (George E. Q. Johnson to Amos W. W. Woodcock, December 8, 1930, in W
illiam J. Gardner OPF/ATF). Bergreen (Capone, p. 408), citing a summary memo from Ness to Johnson, dates the founding of the Untouchables to November 1930.

  Ness and Fraley (The Untouchables, pp. 17–18) credit Ness with coming up with the idea of the flying squad, though his original manuscript (and the historical record) make clear the plan originated higher up. The book also presents Johnson as a stranger to Ness, even though other evidence (see notes to Chapters Six and Eight) makes clear the two men knew each other before 1930. Ness and Fraley’s account of Jamie lobbying Johnson and Randolph, however, while not in the manuscript, carries the ring of truth, tallying with Jamie’s habit of pulling strings, and with details (such as Randolph reaching out to Herbert Hoover) confirmed elsewhere.

  Most sources, following Ness and Fraley, claim that Ness got the Untouchables job after meeting directly with Johnson (see Eig, Get Capone, p. 239; Perry, Eliot Ness, pp. 51–52). Ness’s manuscript is clear, however, that Ness got the job in a conference with Froelich. Paul Robsky’s account of the Capone investigation, which (though largely fanciful) contains some authentic details, correctly depicts Froelich as the squad’s immediate supervisor. (Fraley and Robsky, Last of the Untouchables, pp. 17–19.) Bizarrely, Perry (Eliot Ness, pp. 51, 304) cites a quote from the Ness-Fraley book (“coolness, aggressiveness, and fearlessness in raids,” p. 23) in Ness’s personnel file at ATF.

  Chapter Twenty

  UNTOUCHABLES BEGIN: George E. Q. Johnson to Amos W. W. Woodcock, December 8, 1930, in Joseph D. Leeson OPF/ATF (also in William J. Gardner OPF/ATF) (“special employee”). W. E. Bennett to the Director of Prohibition, December 8, 1930, in Samuel Maurice Seager OPF/ATF. Randolph, “How to Wreck,” p. 8. Ness MS., p. 10, in ENPS, Roll 1, Folder 2 (“If this group”). Ness and Fraley, The Untouchables, pp. 26–27. Perry, Eliot Ness, pp. 52–53.

  Pinning down the number of men on Ness’s squad at any one time is difficult, because its membership was fluid. Johnson’s letter (cited above) includes the names of seven men: (1) Chapman, (2) Berard, (3) Leeson, (4) Gardner, (5) Seager, (6) Moore, and (7) a special agent “Neww,” which is almost certainly a typo for “Ness.” (George Golding makes the exact same mistake in his fifty-nine-page memo defending himself against sexual harassment charges [see George Golding to the Director of Prohibition, August 30, 1930, in George Golding OPF/ATF].)

  Several sources agree with Johnson that the team initially numbered six, not counting Ness. Lyle Chapman stated more than once that “he was selected as one of a group of six as an investigator on the Capone case . . . under the immediate supervision of Eliot Ness,” and some news accounts also give the number of men as six. (D. A. Sloan to the Director of Prohibition, April 24, 1933, p. 8, in Lyle B. Chapman OPF/ATF; see also LAT, November 5, 1957; CHE, June 13, 1931; Evening Star, June 18, 1931, in ENPS Roll 1, Scrapbook 1). Additionally, a biographical sketch of Ness from the 1940s, apparently prepared with his help, refers to his leadership of “the seven Untouchables,” though it seems to imply Ness was not one of the seven. (“Biographical Sketch: Eliot Ness,” n.d., in Box 2, “Biographies” folder, SPD.)

  Perry (Eliot Ness, pp. 52–53) doubts Ness selected the members of the Untouchables himself, crediting George E. Q. Johnson and William Froelich instead. As proof, Perry cites the fact “that Albert Nabers didn’t even make the short list for consideration [as] another indication that Eliot had little or nothing to do with choosing the unit’s team.” But the fact that Ness staffed the unit is certain; Johnson later testified that Ness “selected the squad.” (CT, April 3, 1932.)

  A more obvious explanation for Nabers’s absence is his recent transfer to New Orleans, “for the reason that I believe my chances for advancement will be better there, and for the further reason that I have a younger brother and his family there who need my help and advice.” Nabers would be busy chasing rumrunners from Belize while the Untouchables did their work in Chicago. A. M. Nabers to the Director of Prohibition, August 16, 1930 (“for the reason”); W. D. Hearington to the Director of Prohibition, August 16, 1930; W. K. Bruner to the Director of Prohibition, August 18, 1930; A. W. W. Woodcock to W. D. Hearington, August 19, 1930; A. W. W. Woodcock to A. M. Nabers, August 19, 1930; Recommendation for Change in Designated Post of Duty, September 15, 1930; W. K. Bruner to the Director of Prohibition, May 13, 1931; R. E. Herrick, memo to W. K. Bruner, May 13, 1931, all in Albert M. Nabers OPF/ATF.

  JOE LEESON: Personal History, December 17, 1928; Personal History Statement, December 17, 1928 [?]; Oath of Office, December 17, 1928; Thos. E. Stone to the Commissioner of Prohibition, June 5, 1929; N. B. Miller, Efficiency Rating, April 11, 1930; N. B. Miller to the Commissioner of Prohibition, May 20, 1930; Wm. N. Woodruff to the Director of Prohibition, November 6, 1930; Thomas H. Brennan to William N. Woodruff, December 19, 1930 (“Mr. Leeson has”); Personal History, December 16, 1931; C. W. Hitsman to Chief, Intelligence Unit, “in Re: Joseph D. Leeson,” September 18, 1934; W. K. Bruner, “Leeson, Joseph D.,” October 8, 1935; W. K. Bruner to Deputy Commissioner, Alcohol Tax Unit, August 10, 1936; Cincinnati Times-Star, January 12, 1940; Statement of Joseph D. Leeson, May 15, 1940, all in Joseph D. Leeson OPF/ATF. Ness and Fraley, The Untouchables, pp. 33–34. Perry, Eliot Ness, p. 53. SLS, personal interview with ABS, November 17, 2017.

  LYLE CHAPMAN: Lyle B. Chapman to Lincoln C. Andrews, July 2, 1925; Application for Position of Prohibition Agent, January 26, 1927; Personal History, February 14, 1927; Personal History, September 10, 1927; Alf Oftedal to Harry D. Smith, April 26, 1928 (“He is inclined”); Personal History, March 8, 1929; J. M. Doran to Acuff, September 18, 1929; J. M. Doran to Dwight E. Avis, September 19, 1929; Recommendation for Change in Designated Post of Duty, February 3, 1930; B. F. Hargrove Jr. to Dwight Avis, March 29, 1930 (“out of his,” “somebody is always”); Dwight Avis to Lyle Chapman, March 31, 1930; Dwight Avis to the Commissioner of Prohibition, April 3, 1930; J. L. Acuff to W. L. Ray, February 12, 1931; W. L. Ray to J. L. Acuff, February 17, 1931 (“It goes without”); Dwight Avis to W. L. Ray, February 20, 1931; E. P. Guinane to Director, United States Bureau of Investigation, October 6, 1932, all in Lyle B. Chapman OPF/ATF. LAT, June 30, 1931 (“a veritable registry”); November 5, 1957; September 23, 1962 (“hits you like”). Ness MS., pp. 13, 15, in ENPS, Roll 1, Folder 2 (15, “pencil detective”). Ness and Fraley, The Untouchables, pp. 31–32. “Lyle Chapman,” Colgate Football Memorabilia Collection, http://www.colgatefootballcollection.com/lyle-chapman.html (accessed May 3, 2016).

  WILLIAM GARDNER: CT, November 24, 1907; March 30, 1928. 1920 U.S. Census Record for William J. Gardner. R. H. Allen to Frank T. Hines, March 24, 1926; Application for Position of Prohibition Agent, July 2, 1926; Oath of Office, July 29, 1926; A. J. Hanlon to Alf Oftedal, September 21, 1927; Alf Oftedal to Gerald P. Nye, October 1, 1927 (“investigative turn of”); Alf Oftedal to Thomas E. Stone, November 20, 1927; J. M. Doran to William J. Gardner, November 21, 1927; Alf Oftedal to Thomas E. Stone, November 30, 1927 (“quite lacking in”); Maurice Campbell to Alf Oftedal, January 21, 1928; Alf Oftedal to Mr. Billard, March 15, 1928; J. M. Doran to Charles Curtis, March 16, 1928; Alf Oftedal to William J. Gardner, March 16, 1928; Alf Oftedal to George Golding, March 16, 1928; William J. Gardner to J. L. Acuff, April 16, 1928 (“We are quite”); George E. Golding to the Commissioner of Prohibition, May 4, 1928; Application for Position of Prohibition Agent, May 14, 1928; W. J. Gardner, Resignation Form for Use of Field Service, June 16, 1928; George E. Golding to the Commissioner of Prohibition, June 18, 1928; Oath of Office, October 22, 1928; J. M. Doran to the U.S. Civil Service Commission, October 23, 1928; Alexander Jamie to Andrew McCampbell, June 7, 1930; Efficiency Report, January 17, 1931; W. J. Gardner to A. W. W. Woodcock, May 2, 1931; Dwight E. Avis to Mr. Jones, May 7, 1931; Howard T. Jones to Prohibition Administrator, San Francisco, May 20, 1931; Personal History Statement, June 3, 1932; “Educational, Military, Business Record of W. J. Gardner,” n.d., all in William J. Gardner OPF/ATF. Knute K. Rockne, “What Thrills A Coach,” Collier’s, December 6, 1
930, p. 21 (“down-the-field”). Glenn S. Warner, “The Indian Massacres,” Collier’s, October 17, 1931, p. 62. Ness MS., p. 13, in ENPS, Roll 1, Folder 2. Ness and Fraley, The Untouchables, pp. 34–37. Jenkins, Real All Americans, pp. 1–6, 74–81, 231–246. Benjey, Doctors, Lawyers, Indian Chiefs, pp. 5–6 (“Kill the Indian”), 12–13, 123–131 (126, “his leg wrenched”; 130, “one ‘Hellacious’ fight”).

  The dating of the Gardners’ “Hellacious” fight is conjectural. Benjey dates it to right before Gardner’s joining the Untouchables, but this seems unlikely as evidence suggests he and his wife were already separated by then. Gardner’s return to the Prohibition Bureau in October 1928 seems more likely.

  UNTOUCHABLES ASSEMBLE: Rowe to the Director of Prohibition, December 12, 1930; Woodcock to Rowe, December 15, 1930; Thos. H. Brennan to Wm. N. Woodruff, December 19, 1930; Ernest Rowe to the Director of Prohibition, December 22, 1930; Ernest Rowe to the Director of Prohibition, January 23, 1931; Dwight E. Avis to Eliott [sic] Ness, November 18, 1931, all in Joseph D. Leeson OPF/ATF. Amos W. W. Woodcock to George E. Q. Johnson, December 13, 1930; Recommendation for Change in Designated Post of Duty, December 15, 1930, both in Lyle B. Chapman OPF/ATF. Andrew McCampbell to the Director of Prohibition, January 6, 1931, in William J. Gardner OPF/ATF. Maurice Seager to “Phil + Belle,” December 28, 1930, SLS (“ready to go,” “share of blood,” “relieve the monotony”). Ness and Fraley, The Untouchables, p. 25. LAT, September 23, 1962 (“I remember my”).

  Though the documentary record on the early days of the Untouchables is scant, what evidence survives suggests Seager had a leadership role. His letter home refers to men serving under him (Maurice Seager to “Phil + Belle,” December 28, 1930, SLS). In late January, Ness wrote to Washington about the work of “Mr. Seager and myself,” suggesting they were partners of some kind (Eliot Ness to the Director of Prohibition, January 20, 1931, in William J. Gardner OPF/ATF). That Seager was, along with Ness, the first special agent assigned to the case may also indicate a major role.