One morning soon after, Hoover happened to be heaving a medicine ball—his preferred form of exercise—with the members of his cabinet in a prebreakfast ritual that became known as the “medicine cabinet.” Among the participants was Andrew Mellon, the secretary of the Treasury. “Have you got this fellow Capone, yet?” asked Hoover between tosses of the ball. Mellon shook his head. “I want that man in jail,” said the president, resuming the game.
• • •
Within days of that conversation on the White House lawn, Capone was served with a subpoena to appear before a federal grand jury in Chicago on March 12. Thus began an intricate game of cat and mouse between Capone and the U.S. attorney in Chicago, George E. Q. Johnson, with each side making subtle but telling missteps. Capone’s initial response to the subpoena was to plead poor health as a result of a bout of influenza. On March 5, his Miami doctor, Kenneth Phillips, signed an affidavit stating, “Since January 13, 1929, said Alphonse Capone has been suffering broncho-pneumonia pleurisy with effusion of fluid into the chest cavity and for six weeks was confined to his bed at his home.” As anyone who troubled to read the newspapers knew, this was preposterous; Capone had been peripatetic, especially since the St. Valentine’s Day Massacre; he had attended Hialeah and the Sharkey-Stribling fight, given two well-publicized parties, and had even visited the office of the Dade County solicitor. And yet, Dr. Phillips continued, “Capone’s physical condition is such that it would be dangerous for him to leave the mild climate of southern Florida and go to the City of Chicago. . . . There would be a very grave risk of a collapse which might result in his death from a recurrent pneumonia.”
By avoiding a subpoena to appear before a federal grand jury, Capone unwittingly gave the government an opportunity, and the Feds exploited it to the hilt. For the first time, J. Edgar Hoover, the director of the Federal Bureau of Investigation, took a personal interest in putting Capone behind bars. The FBI had previously refused to tangle with Capone—or any other racketeer—for a variety of bureaucratic reasons, all of which had to do with the prickly, fiercely defended personality of its director. Hoover had occupied his position since 1924, and throughout the Prohibition years he had avoided bootleggers and racketeers because he feared they would bribe and corrupt FBI agents as they had corrupted Prohibition agents. Fighting urban gangsters was not a battle Hoover thought he could win, and it was not a battle he wanted to fight. Until as late as the 1950s, he argued that racketeers were not breaking federal laws; it was only when FBI agents broke up a nationwide racketeers’ conference in Apalachin, New York, in 1957 that Hoover finally declared that the racketeers had crossed state lines to do business, and thus their activities were subject to FBI scrutiny. Until that time, Al Capone was one of the few exceptions to this rule, and Hoover pursued him, in part, because he was afraid the Treasury Department might actually get there first in prosecuting Capone and so rob the FBI of glory. The other reason Hoover took an interest in Capone was that the assistant attorney general, Mabel Walker Willebrandt, urged him to do so, “as a personal matter of great importance to me.” Willebrandt continued, “It would be a tenstrike on a huge case if you are able to prove the falsity of this affidavit so that we can punish Capone and the Doctor for contempt. May I rely upon you to do so secretly and soon?”
J. Edgar Hoover had no choice but to comply with her request, and once he committed himself, the FBI did a thorough job of discrediting Dr. Phillips’s assertion Capone was too sick to travel to Chicago. FBI agents descended on Miami and rounded up their own affidavits, twelve in all, from witnesses who had seen Capone during the time in question. In one affidavit, Dr. Samuel D. Light, Capone’s physician, testified that his patient had indeed been a sick man during the first half of January. Dr. Light noted that he had made seventeen house calls during that period, and Capone had required the attention of two nurses to care for a case of influenza that had turned into “double pneumonia.” Then Capone apparently made a rapid recovery, for eight witnesses placed him at the Hialeah racetrack on twenty-four days between late January and early March. And Eddie Nirmaier, the pilot who had “bombed” Palm Island to get tickets to the Sharkey-Stribling fight, swore that on February 2, when he flew Capone and some pals to Bimini, Al “appeared to be in good health,” strong enough to make the round-trip flight without any ill effects.
Of special interest, an FBI agent named J.J. Perkins learned of another offshore trip Capone had taken just prior to the St. Valentine’s Day Massacre. The party included Capone; his younger brother Albert; Philip D’Andrea, a bodyguard; three Miamians; and William Kelly, a Prohibition agent. As might be expected, Capone paid for all of Kelly’s expenses on the trip. The party left Miami on February 8 aboard the steamship New Northland. “Previous to the SS New Northland sailed,” agent Perkins reported to Hoover, “Captain Tremblay of the SS New Northland, asked Mr. H. V. Perry [manager of the steamship line] who Capone was, as a friend of the Captain’s had introduced Capone to him and requested that Capone be given special attention on the trip from Miami to Nassau. Mr. Perry recommended to the Captain of the SS New Northland not to fraternize, and if necessary to stay in his quarters in order to avoid Capone.” The Capone party returned from Nassau on the morning of February 13, a little more than twenty-four hours before the St. Valentine’s Day Massacre. Such was the precise and detailed fieldwork of which the FBI was capable when Hoover chose to take an interest. As a result of its investigation, the FBI concluded, “There is no doubt that Al Capone was ill during the first part of January, 1929, and was confined to his bed with influenza or possibly pneumonia. However, the evidence . . . proves that he had sufficiently recovered therefrom to be up and about.” In short, Dr. Phillips had lied about Capone’s health.
The investigative effort required cooperation among the bureau, which was doing the fieldwork; Mabel Walker Willebrandt, who was overseeing the enforcement of Prohibition laws for President Hoover; George E. Q. Johnson, the U.S. attorney who would use the affidavits to instigate contempt proceedings against Capone; and finally, Judge James H. Wilkerson, the federal judge who had issued the subpoena Capone had ignored. On this occasion, the activities of all these agencies and personalities in Chicago and in Washington, D.C., meshed and meshed quickly. “It would be dangerous for him [Capone] to come to Chicago,” Judge Wilkerson said, mocking the racketeer’s excuse for his absence. “I wonder what kind of danger he means?” Days later the judge charged the racketeer with contempt of court. George E. Q. Johnson was delighted with the outcome. In a letter of thanks to J. Edgar Hoover, the U.S. attorney boasted, “In dealing with persons like Capone my policy is to prosecute vigorously for every violation and this prosecution for contempt will be helpful in other ways”—ways that would become apparent if and when Capone went to trial.
Johnson’s assurances were not enough to satisfy the highly competitive director of the FBI, who thought that the bureau’s brief investigation would lead to the downfall of the Capone organization. “Capone is popularly viewed as the over-lord of the underworld and there is no doubt but that he wields a tremendous amount of control,” Hoover remarked. “I believe that many of his followers, who are controlled by fear and not by sincere loyalty to him, and certainly the innumerable enemies that he has made, would be more inclined to furnish information to the Government authorities concerning Capone’s activities if he were once placed in the penitentiary even though it be for Contempt of Court.” Hoover’s expectations were unrealistic and self-serving. His attempt to jump to the forefront of the government effort to get Capone came to nothing, and Johnson continued to pursue his tedious but far more sophisticated strategy.
While his pursuers jockeyed for position, Capone remained ignorant of his powerful new antagonists; indeed, he still failed to understand the exact nature of his troubles. “They say the police of Chicago want to see me about the gang massacre,” he glumly noted on March 6. But it was not the police who wanted to question him, it was a federal grand jury; and the subject und
er investigation was the not the St. Valentine’s Day Massacre but findings of the bold and successful raid on Chicago Heights in early January. Federal prosecutors thought they had come up with evidence linking Capone to mail robbery. Indeed, the Feds were so eager to question him in Chicago about that raid that they offered him protection and held out the possibility of immunity in exchange for his testimony. Even the Chicago Police Department announced they would refrain from questioning Al Capone about the St. Valentine’s Day Massacre if he appeared before a federal grand jury. “As things stand now, we don’t want to talk to Capone at all,” said the deputy police commissioner, John Stege. “He was in Florida at the time of the Clark Street murders.”
Capone had faced a similar situation in 1926, when the police wanted to question him about the murder of William McSwiggin. After hiding out in Lansing, he had appeared in Chicago and had managed to wriggle out of that tight spot. Given the assurances the police and federal prosecutors were making, he was willing to try the maneuver again. On March 19, he traveled to Indiana, remaining just on the other side of the Illinois border, fifteen miles from Chicago, where his appearance before the grand jury had been rescheduled for 10:00 A.M. the following morning. At this delicate moment, George E. Q. Johnson, the U.S. attorney, declared, “Capone will be handled like the hoodlum he is.” Johnson’s outburst nearly wrecked all the carefully laid plans to lure Capone back to Chicago. However, the racketeer did appear as scheduled, testifying before the grand jury for over an hour, during which he reluctantly traced his career in Chicago and admitted he might have neglected to pay his income tax. Always willing to make a deal, Capone, according to one newspaper account, offered to “split any difference he had with the government and might pay the salary of several prohibition agents for a year or two.” Afterward, Judge Wilkerson ordered him to return on the twenty-sixth, and Capone’s lawyers, William F. Waugh and Benjamin Epstein, demanded the federal government make good its implied promise of immunity. Meanwhile, the police refrained from asking him about the massacre, and rival bootleggers refrained from shooting at him. Capone remained sequestered until his next appearance before the grand jury as the Feds suddenly seized records at both the Lexington and the Metropole, the hotels where he had maintained lavish quarters. Capone professed to be ignorant of Johnson’s motive. The U.S. attorney explained he had learned of Capone’s lavish hotel accommodations, documented by the records they had seized. If Capone could pay hotel bills running to thousands of dollars every week, surely he earned enough to pay income tax.
Capone had always been extremely careful about hiding his sources of income, a lesson he had learned well from Johnny Torrio; he had not endorsed a check in years, maintained no bank accounts, and left his accounting to his brother Ralph and Jack Guzik. But spending was another matter. Capone had spent prodigiously, and he had spent publicly, at hotels, racetracks, restaurants, wherever he went. He had given away money to wealthy politicians and poor widows alike, and his actions had always seemed harmless enough. He knew how to steer clear of murder charges and how to explain his way around bootlegging. If a killer such as Jack McGurn could avoid being charged with the St. Valentine’s Day Massacre murders, surely Al Capone, who was infinitely more subtle in his use of violence, would be able to avoid conviction for tax evasion. Judges could be bought, jurors threatened—that was the Chicago way. He could not conceive of the government successfully prosecuting him for tax evasion. “The income tax law is a lot of bunk,” he insisted. “The government can’t collect legal taxes from illegal money.”
Just before Capone was scheduled to testify again, Johnson announced to everyone’s surprise that the racketeer was free to go. No further testimony was required of him at this time. However, on March 27, Capone, who was packing to return to Florida, was arrested for contempt of court, the fruit of the FBI investigation into his avoidance of Judge Wilkerson’s subpoena. Capone was incensed, for the government charged him with avoiding testimony he had belatedly given, and after the U.S. attorney himself formally excused him. As Capone was learning, the law was whatever the government said it was.
“This is a disgrace!” Capone snapped when he appeared at the Federal Building in the Loop to answer the charge. Learning that he could leave once he posted a $5,000 bond, his round face broke into a broad, confident grin. “That’s easy,” he said. “My lawyers have that all fixed.” The bond materialized instantly, and Capone donned his fedora. “See you later, boys,” he said to reporters as he headed out the door.
• • •
Baffled by the federal government’s inconsistent behavior, Capone scurried back to Miami Beach, where he tried to decide on the best course of action. He explored the possibility of seeking sanctuary in the Bahamas, to which he had made frequent excursions by boat and air. “My hydroaeroplane makes the water jump from my back door here in the bay to my Bahama island in an hour, and I’ve been accustomed to flying over several times a week and then back for supper,” he boasted. “We can go over there and have a quiet highball or two under the British flag without violating the Prohibition laws of the United States.” Furthermore, the Bahamas could serve as a convenient base for offshore bootlegging. Capone was serious about purchasing an island to use for this purpose—thus the talk of “my Bahama island.” He visited Nassau several times, planning to make his purchase in anonymity, but even there he was recognized, and knots of curious tourists followed him along the street. The crowds were not, it should be added, hostile; people wished him well and expressed the hope that he would move to the Bahamas. A real estate agent escorted him to three comfortable houses, and Capone was particularly taken with one, for which he subsequently offered $500,000—a staggering amount, indicative of his desperate resolve to flee the net of American justice slowly encircling him. However, his offer was refused, as were two bids on other homes, and to make matters worse, Bahamian officials branded Capone an “undesirable alien.” He had been called many things in his career—pimp, murderer, dago—but his actions had always spoken louder than epithets until now. This term had the force of law. If he ever set foot in that British colony again, he would be subject to arrest or deportation.
In the end, Capone was left with no alternative but to return to Florida, where he gave his side of the story to the most famous columnist of the day, Walter Winchell. In the peculiar, staccato style for which he was known, Winchell transcribed his impressions of the racketeer in midcareer:
WALTER WINCHELL ON BROADWAY
Portrait of a Man Talking to Capone
A mutual friend asked me if I would like to meet Capone, and I said I would . . . Might have made a lot of coin from all those magazines that asked for an article on the visit with “The Capones at Home” . . . But I told Capone I wouldn’t go commercial on the call—and I didn’t . . . He said that he didn’t care whether I did or not—that he never met a newspaper man yet who didn’t cross him . . . Wonder is it true what I heard about him? . . . That before retiring each night he cried like a baby.
I had always pictured him as a small and fat person . . . He’s over six feet! . . . When I was entering his place, he saw me coming up the three steps leading to the parlor . . . He was playing cards with three huskies . . . Their backs were to the door—Capone faced it! . . . “Oh, come in,” he called as he saw me, and in the same breath he must have said to the others, “Scram” because they disappeared quicker than the birds . . . He was sweeping the table clean of cards and chips as I sat down on a settee near his side of the table . . . “Sit over here,” he said . . . “No, this is all right,” I countered . . . “No, sit over here, please.” He persisted but I didn’t move . . . My orbs had caught sight of the largest automatic I ever saw . . . He covered the gun with one of his immense paws and hid it on the other side of the table. . . . “I don’t understand that,” I said, “Here you are playing a game of cards with your friends, but you keep a gun handy” . . . “I have no friends,” he said as he handed me a glass of grand beer.
&n
bsp; Among other things I learned during that call was that every time you referred to it as his gang, he corrected you with “my organization” . . . He argued long and loud about being blamed for everything—most of which he never did . . . “All I ask is that they leave me alone,” he said once . . . I didn’t tell him so, but I thought of a lot of people who wished he would leave them alone . . . His beautiful mansion was really another prison for him . . . He couldn’t leave it without a heavy guard . . . When he moved it was done secretly—by plane or boat—both of which were anchored in the waters adjacent to his home there . . . He told me of a doctor down in Miami who crossed him for the Government—who told the officials he wasn’t sick at all when all the while he thought he’d die from pneumonia . . . “Once,” he was saying, “I was so sick I fell down a whole flight of stairs!” . . . The doctor’s fee, he thought, was too stiff, and he paid him only half . . . “So he told the Government,” said Capone, “that I was never sick” . . . He sighed heavily, and, with a prop smile, added: “That’s the funniest thing. Anybody I have wined and dined right in my own house crossed me” . . . He handed me the third beer . . . Swelegant!
• • •
At the end of April, evidence suggesting that Capone was still using drugs came to light when his dentist, Dr. Frank L. Brady, was murdered in his Chicago office. Two gunmen entered while the doctor was seeing a patient; one pressed a gun to his white coat and fired, and the doctor slumped to the floor. An investigation by “Shoes,” Captain William Schoemaker, revealed that Dr. Brady, though a qualified dentist who treated a number of patients, including Capone, also dealt in a particularly hazardous sideline: he supplied narcotics to gangsters. It was possible that he obtained Capone’s cocaine; the transactions could easily be camouflaged as routine visits to the dentist. As with so many other investigations conducted by “Shoes,” this one failed to turn up a suspect or a motive, but the dentist’s death exposed another chink in Capone’s armor.
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