Capone

by Laurence Bergreen

  “Well, I was present at several conversations. One was upstairs when Capone asked Mr. Morgan and the Reverend Mr. Hoover why they were always picking on him. ‘Why don’t you lay off me in Cicero?’ he said, and Mr. Hoover said they were not picking on him. ‘This is the last raid you’ll ever pull on me,’ Capone said.”

  “Describe what you saw upstairs.”

  “There were roulette wheels, pool, billiard and crap tables, and a chuck-a-luck outfit.”

  “Did you see Capone again?”

  “Yes, when Judge Hamilton of LaGrange, who was with us, was asked to issue a warrant for him. Shortly after that Capone disappeared.”

  Green ended his questioning, and Capone’s lawyer quickly began cross-examining the witness, picking at a small but telling point.

  “What’s chuck-a-luck?” he asked Bragg.

  “I don’t know.”

  “Then you can’t say whether there were chuck-a-luck outfits there.”

  “I mean I don’t know exactly. It’s something like a parrot’s cage and dice roll in the center.

  “In how many raids have you taken part?”

  “I was in on another one in Stickney.”

  “Was there any attempt made to arrest Capone in the raid at 4818 West Twenty-second Street?”

  “I don’t know. I didn’t see any.”

  “Were others arrested?”

  “Warrants were drawn for the minor help.”

  “You saw no warrant drawn for the man who said he was the owner of the place?”

  “There was a demand made for the warrant, and I saw a man start to draw it, but before the warrant was ready Capone was gone.”

  “Why was the warrant not served?”

  “I don’t pretend to know the intricacies of the law in such cases.”

  Ahern shifted his tone of voice to disparaging sarcasm. “Oh, you suspect that there was skullduggery, do you?”

  “I know it was a rotten job not to go through with the arrest.”

  After successfully suggesting that the raid could have been fixed, Ahern stumbled. All trial lawyers face the hazard of probing too deeply, of asking one question too many, and that is what Ahern did next.

  “How do you have such a distinct recollection of this raid?”

  “Well, if you had your face busted like I did you wouldn’t forget it for awhile.”

  “Oh, you were beaten up? Where was that?”

  “Outside, as I was leaving. My nose was broken by a blackjack or a brass knuckle.”

  Ahern stopped pressing for answers.

  After Bragg stepped down, the prosecution called another witness, David Morgan, to corroborate the details of the raid, which Morgan did almost verbatim, suggesting that he and Bragg had been carefully coached about their testimony. “He was unshaven,” said Morgan of Capone’s appearance during the raid. “He looked as though he had about a day’s growth of beard, dark complected, and some kind of rough shirt on; he didn’t have a tie and a collar on, not dressed at all.”

  At this point Morgan underwent a cross examination by Capone’s cocounsel, a tax specialist who had come out of retirement especially for this trial. His name was Albert Fink, and he was in every way Ahern’s opposite. Where Ahern was tall, graceful, and smooth of speech, Fink was short, feisty, and blunt, and he tore into Morgan with a will. Under Fink’s questioning, Morgan described himself as an “investigator for the Western Suburb Ministers and Citizens Association”—but an investigator whose powers of observation were limited, at best.

  “That was an organization of the good people of that town to put down vice, I suppose?” asked Fink about Morgan’s employer.

  “Of several suburbs, yes, sir.”

  “What did they pay you for your services?”

  “Forty dollars a week.”

  “And how long were you in their employ?”

  “Perhaps a year.”

  After drawing Morgan out on his earlier career as a machinist for Western Electric, which operated an enormous plant in Cicero, Fink remarked, “Well, you have been a machinist all your life until you became a detective, is that right?”

  “Well, I wouldn’t call it exactly detective.”

  “What would you call it?”

  “I was in investigation work.”

  After that, Fink did what he could to demonstrate to the court that the machinist-turned-investigator was not much of a detective.

  “Do you know Ralph Capone?” he asked, referring to Al’s older brother.

  “I’ve seen him,” Morgan replied.

  “What is your best recollection as to the number of times you have seen him?”

  “Probably about the same as Alphonse.”

  “What was the comparative size of Ralph and Al in 1925 when you knew them both? Was Al larger or smaller than Ralph?”

  “Well, they had different shapes; I wouldn’t say he would be larger or smaller in appearance.”

  “Which was the taller of the two?”

  “I wouldn’t state for sure.”

  “Which one weighs the most?”

  “That is also pretty hard to judge.”

  “As a matter of fact,” Fink concluded, “you didn’t know them apart.”

  Fink’s statement brought Green to his feet, objecting. The defense lawyer then tried to undo the damage Ahern had done concerning the beating received by the raiders as they were leaving.

  “Nobody hit you with a blackjack or a pair off brass knuckles, did they, that day?”

  “Yes,” Morgan said, “I got about the same as Mr. Bragg did.”

  “Hit you on the nose?”

  “Yes.”

  “Al didn’t do it?”

  “No, he didn’t.”

  The procession of government witnesses continued with Leslie Shumway, one of Frank Wilson’s prized sources, who returned from his Oregon “vacation” to give details about the Capones’ Hawthorne Smoke Shop.

  “Who were the managers of the place?” Jacob Grossman asked.

  “Mr. Penovich and Mr. Pope.”

  “And just what kind of a place was that gambling establishment? What did they have there?”

  “Well, they had the horses, and all kinds of gambling games, a wheel, craps, ‘Twenty-one,’ bird cage.”

  “Was it a pretty complete establishment?”

  “Why, yes, sir, I should say so.”

  At that point Shumway presented thirty-four loose-leaf books documenting the Hawthorne Smoke Shop’s gambling activities. Jacob Grossman began to leaf through them, pausing to ask Shumway if he had actually seen Capone on the premises.

  “Yes, sir, I have seen him in there.”

  “Where did you see him?”

  “Well, it would be in the office, because I never would be anywhere else.”

  “Did you see Al make any bets in that establishment on horses?”

  “No, sir.”

  “Do you know whether he ever made any bets there?”

  “Well, he has made some over the wire, but he didn’t make any in the establishment.”

  “Did you ever see Al Capone’s name on the wire record as having made bets over the wire?”

  “Yes, sir.”

  “Now, how many places did you operate in, do you remember?”

  “Yes, I would say five or six. I don’t know.”

  “Right in the immediate neighborhood there, is that right?”

  “Yes, all around within a couple of blocks or so.”

  “Well, where was the money kept?”

  “The money was kept in a big safe in a nearby vacant building.”

  Grossman tried again to tie Capone to the gambling business, but the prosecution still failed to prove the crucial point, that Capone was deriving revenue from the venture. “Did you any time after that have any conversation with Al Capone about carrying the money over there?”

  “Yes, it was some time later that Al asked me what I would do if I got stuck up, and I told him, I says, ‘I would just let them take it,’
and he says, That is right.’ ”

  Shumway stepped down from the stand, and as their next witness the prosecutors presented Capone’s primary self-appointed adversary, the Reverend Henry C. Hoover himself. The thirty-five year-old Hoover had succeeded in making himself into a celebrity in Chicago; even those who disagreed with him dared not criticize a man of the cloth. The newspapers liked Hoover, he made good copy, as crusaders went, he liked to be quoted, he made things simple—good versus evil, as in the Bible—and they took to calling Hoover “The Raiding Pastor.” The name stuck. It was Hoover who had been the first guardian of the public morals to call attention to Capone’s nefarious activities in Stickney and Cicero, and who had first generated negative publicity for Capone by proclaiming him the king of Chicago’s rackets—all this in 1925, a year before the McSwiggin killing brought Capone under official scrutiny for murder as well as racketeering. The nagging Hoover was a man ahead of his time; few paid him heed while the money and liquor flowed, but now in a time when God seemed to be visiting judgment on American society in the form of the Great Depression, the pastor suddenly acquired authority as the man who had warned Chicago all along about the dangers of worshiping the Golden Calf.

  Dwight Green of the prosecution began questioning the Raiding Pastor.

  “What is your occupation?”

  “Minister of the Gospel.”

  “Do you know the defendant Alphonse Capone?”

  Hoover looked at Capone, who quietly, insolently, chewed gum. Through his pince-nez, the Raiding Pastor glared at Capone and pointed him out with his right hand.

  “When did you first see him?”

  “On a Saturday afternoon in May 1925 at 4818 West Twenty-second Street, Cicero. That was a gaming establishment.”

  “Where in this establishment did you see him?”

  “In the main gambling hall, on the second floor, and later back behind the partition, in a back room.”

  “Describe the second floor.”

  “It was a large hall, with gambling apparatus, chairs, and racing forms, and then to a rear a partition shut off a back room.”

  “Where on the second floor did you first see the defendant?”

  “I was in the larger hall. I saw him first when he came up the stairway, into the hall, and disappeared into the back room. . . . I followed him into the back room. When I saw him then he was taking the money out of the till and putting it into his pockets.” He was, said Hoover, “dressed as though he had just gotten out of bed, with a pajama shirt and a suit of clothes. He was unshaven.”

  “Did you talk with the defendant at this time?”

  “Yes. I said to Lieutenant Davidson, ‘Who is this man?’ and Mr. Capone raised his head and replied, ‘I’m Al Brown, if that good enough for you.’ I said, ‘Oh, I thought it was someone like that, someone more powerful than the president of the United States.’ ” The reverend’s bitter jest fell flat in the courtroom, but his implication that the federal government, if no one else, had jurisdiction over Capone’s unchecked racketeering was not lost on the members of the jury, who did not know much about the law but did respect authority.

  “What else did the defendant say?” Green asked his witness.

  “He said, ‘Why are you fellows always picking on me?’ I told him this was not a personal matter, that we were simply trying to uphold the law in the western suburbs.”

  “Did you see the defendant at a later time on the same day in this establishment?”

  “Yes.”

  “What did he say, if anything?”

  “He said, ‘Reverend, can’t you and I get together—come to an understanding?’ I asked him what he meant, and he said, ‘If you will let up on me in Cicero, I’ll withdraw from Stickney.’ ”

  Hoover’s improbably formal rendition of Capone’s speech drew laughter from the courtroom, even from the Raiding Pastor himself, who turned purple as he continued his account: “I said, ‘Mr. Capone, the only understanding you and I can have is that you must obey the law or get out of the western suburbs.’ ”

  As Hoover told this story, Capone poked his lawyers in the back and appeared to find it so funny that he had to restrain himself from laughing in the Raiding Pastor’s thin-lipped face. Hoover happened to be precisely the sort of self-righteous, self-promoting zealot Capone detested. Nor was Capone the only one who had his doubts about Hoover. The Times’s Meyer Berger spoke for many in the courtroom when he noted his reservations about Hoover’s testimony. “The thought of this pale-faced minister dictating terms to a man who is supposed to have a legion of machine gunners and quick trigger men to do his bidding seemed incongruous.” Although Capone, in Hoover’s account, sounded more like a harried businessman than Public Enemy No. 1, the testimony did link Capone to the gambling house: a crucial point in the government’s circumstantial case. “Capone had so cleverly hid himself in his operations, keeping no bank account, holding no property in his own name, signing no checks, always working through others, that he was almost invisible and invulnerable,” Johnson wrote soon after the trial. However, even Johnson’s good luck of stumbling across the Raiding Pastor was highly qualified. “The raid was five years old,” he explained. “It was a question whether it was outlawed by the statute of limitations. This law holds that after a certain time a crime cannot be prosecuted. . . . We took our chance and went ahead.” Johnson waited for Ahern and Fink to bring up the issue and try to have Hoover’s testimony thrown out of court. “We on the Government’s side expected them to do so. It would have been almost the obvious thing. However, to our utter astonishment, Capone’s counsel failed to plead the statute of limitations!” And, he realized, “once having let slip the opportunity . . . Capone could not recover it again.”

  Once Hoover concluded his testimony, which entered the record without being challenged, Judge Wilkerson declared court adjourned. It had been a long day, but Capone lingered in the courtroom, flanked by his two lawyers and his bodyguard, Philip D’Andrea, who, with his gold-rimmed spectacles, quiet suit, and somber mien, looked like just another lawyer as the entire group posed for photographs. “The impression gathered from watching Capone playing hide-and-seek through corridors and entrances of the federal building, grinning at the crowds, and tirelessly posing for photographs,” noted the Chicago Tribune, “is that the gangster is enjoying himself immensely.”

  • • •

  On the second day of testimony, October 8, the prosecution seized the advantage by introducing a series of letters that seemed to prove that Capone had avoided paying his taxes. The background of the letters was this: In 1930, Capone, concerned about an impending indictment for federal income tax evasion, had asked a lawyer in Miami, Lawrence Mattingly, to handle the situation. At the time, this seemed to be a prudent move, especially since his brother Ralph was about to convicted for the same offense. However, the resulting correspondence was about to be used against him in court. As evidence, these letters cut both ways. On the one hand, they demonstrated that Capone was pursuing the matter rather than trying to shirk his obligation; on the other hand, since he never did take Mattingly’s advice to pay the taxes, the Mattingly letters could also be used to prove that Capone couldn’t claim ignorance in this matter.

  Had Capone’s lawyers worked harder and relied less on their client’s proven ability to tamper with a jury or bribe a judge, they would have done all they could to make sure these letters were excluded from the trial. And if they had been excluded, the case against Al Capone, lacking proof that he was aware of his obligation to pay federal income tax, would have been far weaker.

  The first letter introduced in evidence was from Mattingly to an IRS agent named C. W. Herrick in Chicago:

  Dear Sir:

  Mr. Alphonse Capone, residing at 2135 South Michigan Avenue, Chicago, Ill. [the Lexington Hotel], has authorized me to make an exact computation of income tax liability for the year 1929 and prior years, the amount of which he will pay as soon as determined. Mr. Capone has never filed incom
e tax returns.

  Next, the court heard a transcript of an April 17, 1930, discussion Capone and Mattingly held with the IRS agent about the matter.

  HERRICK: Now, Mr. Capone, just so we all understand the situation, you and Mr. Mattingly are here in an effort to clean up your income tax liability. I want to say this, in order that there may be no misunderstanding, that any statement you make here will naturally be the subject of such investigation and verification as we can make.

  MATTINGLY: Mr. Capone is here to cooperate with you and work with you. It isn’t my purpose here, I don’t feel that I can, in justice to my client, permit him to make any statement or admission that might subject him to criminal prosecution.

  HERRICK: What records have you of your income, Mr. Capone—do you keep any records?

  CAPONE: No, I never did.

  HERRICK: Any checking accounts?

  CAPONE: No, sir.

  HERRICK: Do you own any property in your own name?

  CAPONE: No, sir.

  HERRICK: How long, Mr. Capone, have you enjoyed a large income?

  CAPONE: I never had much of an income, a large income.

  HERRICK: I will state it a little differently, an income that might be taxable?

  CAPONE: I would rather let my lawyer answer that question.

  MATTINGLY: Well, I tell you, prior to 1926, John Torrio, who happens to be a client of mine, was the employer of Mr. Capone and up to that point it is my impression his income wasn’t large. He was in the position of an employee, pure and simple. That is the information I get from Mr. Torrio and Mr. Capone.

  HERRICK: Prior to 1926? At that rate, the years under consideration would be 1926, 1927, 1928 and 1929?

  CAPONE: That’s it exactly.

  MATTINGLY: I should like to say further that Mr. Capone will hold himself in readiness to appear at any time you may call upon him.

  WILSON: Have you ever filed income tax returns?

  CAPONE: No.

  The transcript was no more forthcoming on the subject of Capone’s income after 1926. When it came to his Miami house, he would admit only that he had bought the property for $10,000 in cash, and obtained a mortgage for $30,000. He refused to admit owning any racehorses or to explain how he had managed to pay his legal fees over the years.