“The next picture we have of this defendant is in 1925, and the record tells you this: Mr. Bragg, and Mr. Hoover, that sincere man, who is a minister of the Gospel, who had the courage, testified before you that they had received money. From whom and for what? They wanted to protect their homes in the western suburbs. Bragg told you he was interested because he had some kids to bring up, and there were gambling places in Cicero, and they wanted to protect the reputation of their community. They wanted to close this institution of gambling, which was exercising such a sinister influence upon the life of Cicero. That, gentlemen of the jury, was their interest in this case, and if that did not spring from the highest motives of citizenship, then I do not understand what citizenship in America means.”
Johnson continued his review of the government witnesses, explaining how each man’s testimony contributed to a pointillist portrait of tax evasion. Then he returned to the question of Capone’s character. “Let us see how the halo of mystery and romance fits upon the brow of this defendant. At any time, at any place, has this defendant ever appeared in a reputable business? Have there appeared records such as honest citizens keep? Has there appeared, outside the purchase of the home in Florida, a single instance of contact with reputable business? What a picture we have in this case: no income, but the defendant in the years in question spent—on diamond buckles, on twenty-seven dollar shirts, on furnishings for his home—$116,000 that is not deductible from his income. And yet counsel comes here and argues to you that the man had no income.”
Johnson then started a bold attack on Ahern and Fink. His manner became, according to the Chicago Tribune, “almost evangelical, clenching his fist, shaking his gray head, clamping his lean jaws together as he bit into the evidence and tore into the defense.”
“Now,” said Johnson, “let me ask counsel some pertinent questions in this case. Why did not the counsel call Jack Guzik, who has been talked about in this case? And they talked about Ralph Capone, or the intimation that it was Ralph Capone who was at the raid when Hoover and his associates raided that place. Could anyone forget the hulking form of this defendant with the flaming scars on his cheek? If it was Ralph Capone, if there was any question about it, why was not Ralph Capone called as a witness?”
“I object to that line of argument,” Ahern protested, though with a noticeable lack of conviction. “Both Ralph Capone and Jack Guzik are under conviction and their cases on appeal. He has no right to say they are defendants.”
Judge Wilkerson, however, sided with Johnson. “The Court has indulged a very great latitude to the defense in this case,” he lectured Ahern.
“But, Your Honor, isn’t it a matter of fact that we cannot call a defendant, that he is privileged from testifying?”
“Overruled,” Wilkerson declared. “You may note your exception.”
Undeterred, Johnson persisted in naming names. “Frank Nitti appears as an endorser on these profit checks, and the name of Sam Guzik appears as a sender of money. May I suggest to you why the government did not call these witnesses. There is a moral responsibility that comes to the attorney. He vouches for the witness who appears on the witness stand, and the government did not care to vouch for these witnesses.” But matters were different when it came to the most controversial government evidence of all, Lawrence Mattingly’s letter. “So far as this record shows here, gentlemen, Lawrence Mattingly represents the defendant in this case before the Treasury Department of the United States.” Even though Mattingly had not testified, his letter was still valid; indeed, Johnson claimed that the other witnesses had virtually corroborated it. “If an artist paints a picture he can put some lines in the face that make the face look like a sage or a fool. And so you can take isolated facts in a record and distort them, and counsel here has sought to give a tortured meaning to the statements of Mr. Clawson and said we admitted we have no case except upon the evidence of Mattingly.
“Gentlemen of the jury, the government in this case asks you not to take a single fact. We ask you to take the whole picture as it is painted to you here. Take every fact and circumstance, and consider, and when you do that, you will find that every page of this record cries out the guilt of this defendant.”
Once he had finished buttressing the circumstantial nature of his case, Johnson turned to Ahern and Fink’s flimsy defense. “If you believe the words that come out of the mouths of these men,” he said of the procession of bookies the defense had presented, “then this defendant lost in the years to which they had testified $327,000 on betting on the horses. Is that a probable story from a man whom they contend had no income?”
Nearing the end of his oration, Johnson again appealed to the jury’s leveling instinct. What they heard in his voice with its flat intonations, indelibly marked with the certitudes of life on the prairie, was the anger and indignation of the honest, literal-minded man who has toiled countless hours for meager wages, who has gone without for the sake of others, and who harbors an implacable resentment of the man who has made easy money, dishonest money, and has used it to indulge himself in every conceivable way. “I am going to ask you to think about the thousands of men and thousands of women who go to work, and who earn just a little above $1,500, and who pay a tax to the government of the United States,” Johnson said. “Is it reasonable to suppose that it is public clamor that brings this defendant before the bar of justice? This is not a case of public clamor. The United States attorney in this district was never more sincere, or more determined in my five years, than I am in this case. I am asking you to treat this case as though the defendant were John Brown. . . . I agree with counsel that this is a case future generations will remember . . . for the reason that it will establish this: whether any man can be above the law, whether any man can conduct his affairs so that he can escape entirely the burdens of government; and that is the record, gentlemen of the jury, that your verdict will write in this case.”
After Johnson returned to his seat, Judge Wilkerson instructed the jury, and in his detailed speech, which lasted over an hour, he gradually revealed his position to be virtually identical to the prosecution’s. He explained to the jury exactly how they could find Capone guilty, despite the lack of hard evidence against him. He reminded them that evidence of his great spending in Chicago and in Miami was sufficient under the law to demonstrate that he had a great income, and he paid special attention to explaining the legal technicalities of relying on the prosecution’s most damning evidence, the Mattingly letter.
“You are the judges of the weight which is to be given to the testimony of the witnesses who have appeared before you in this case,” the judge concluded. “You have had many witnesses here, men from all walks of life. You have had government agents, ministers of the Gospel, business men, and other classes of witnesses. You are not obliged to believe that a thing is so merely because somebody swears to it. Of course, you can’t arbitrarily or whimsically put aside the testimony of any witness. You should weigh this testimony calmly and dispassionately, and then reach a conclusion as to how much weight is to be given to his testimony; you are to consider the interest, if any, in the outcome of the case, the manner in which he has testified on the witness stand, the frankness or lack of frankness, his ability to render some things vividly, and his inability to state other things, if that is the case.”
The judge finished reciting his instructions. His rasping voice stilled at last, a murmur went up, the disconnected mumbling of the multitude. The members of the press began their vigil, drinking away the anxious hours in a nearby speakeasy. The curiosity seekers went home. Ahern returned to his office. The twelve jurors went to the jury room to begin their deliberations. Al Capone, accompanied by Albert Fink, returned to his suite at the Lexington Hotel, where the mood was subdued. Capone set the tone, saying little. The gloomy October afternoon passed, and then the evening. It would not be a swift decision: the first indication the government might not prevail. The longer the jury was out, the lawyers on both sides knew, the grea
ter the likelihood that they would be unable to find the defendant guilty. As the hours passed, the suspicion among the prosecutors increased that something had gone awry in the deliberations of the carefully chosen and instructed members of the jury.
• • •
Locked away, the jurors took ballots—as many as twenty according to one account. There was a problem, as it happened. All the jurors save one wanted to convict Capone on all counts, and the holdout proved stubborn and persuasive. Although his identity was not disclosed, another juror later described what had occurred in the jury room. During the eight hours of deliberation, the dissenting juror argued that the Mattingly letter, rather than damning Capone, actually demonstrated that the man was only trying to pay his taxes. As the hours passed, he managed to convince the other members of the jury to temper their verdict. Which they did, though by how much would not be revealed until the decision was announced.
At 10:51 P.M., after nearly nine hours of discussion, the jurors informed the judge that they had reached a verdict. Capone was summoned from his hotel suite. Twenty minutes later he was battling the throng in front of the Federal Building as he lumbered up the stone steps. He was, as always, wearing his fedora, which he removed as he took his seat in Judge Wilker-son’s courtroom. And the legal spectacle reached its climax.
“Have you arrived at a verdict?” the judge asked.
“We have, Your Honor,” said the foreman, who handed a piece of paper to the bailiff, who gave it to the clerk, who read the verdict aloud:
“On indictment No. 22852,” he said, which referred to Capone’s failure to pay taxes for 1924, “we find the defendant not guilty. On indictment No. 23232,” which covered the years 1925 through 1929, “we find the defendant guilty on counts 1, 5, 9, 13, and 18 and not guilty on counts 2, 3, 4, 6, 7, 8, 10, 11, 12, 14, 16, 17, 19, 20, 21, and 23.” The convictions included three felonies and two misdemeanors. The first count, an “attempt to evade and defeat income tax for 1925,” meant that Capone had failed to pay Uncle Sam what he owed on $250,000 in income. The second count, another felony, applied to his evading tax on his $195,000 income for 1926, and the third and final felony meant the same for his income of $200,000 in 1927. The two misdemeanors concerned his failure to file for income tax in 1928 and 1929.
Ahern insisted on polling the jury members. “Was this and is this your verdict?” he asked every one of them, and each said it was.
The five counts on which the jury had convicted Capone were serious and foretold heavy penalties: enormous fines and the likelihood of jail. The verdict was a clear-cut defeat for Capone; neither he nor his lawyers would be able to salvage anything from the jury’s findings or claim victory. He and his team had bungled the trial, bungled it badly. The combination of a zealous judge, a rural jury immune to bribery, a determined and extremely well-prepared prosecution team, and his own slovenly counsel had proved disastrous. Al Capone was, for once, out-bullied, though it took the government of the United States to accomplish the feat.
Despite the severity of the verdict, neither Capone nor his counsel was wholly surprised. They anticipated he would have to pay heavy fines, and even go to jail for a few years, perhaps as many as five, though with time off for good behavior, he could be out in three years: 1935. He would be only thirty-six, with plenty of time ahead of him. Five years was a manageable amount of time; he could do it, as Leo Brothers had said, standing on his head; and as a VIP prisoner, he would almost certainly be accorded special privileges behind bars—privileges concerning food, lodging, visitors. His experience in Philadelphia had showed him that he could probably transact all the business he needed from jail, and anything he could not attend to personally, Nitti or Ralph could handle. With Prohibition still in force, Capone’s syndicate would conduct business as usual. Al’s confinement in jail changed nothing, no matter what the Feds believed or what the Chicago papers said about the consequences of his incarceration. He told himself it might be a good thing to spend a little time as a guest of the United States in jail, safe from his enemies, while everyone cooled off or died out. He could be seen as paying his debt to society. This whole tax thing was ridiculous, as everyone knew, and trivial compared to the real crimes he had committed, the lives he had taken, or ordered to be terminated. The worst part was the thought of his son visiting him in jail, knowing his father was a convict, and having to live his young life with that stigma. Nothing Al could do would alleviate that pain; he just hoped that Sonny would learn to understand and to forgive—and never be forced to make the choices his father had made.
• • •
“You don’t need to be ordering fancy duds,” Frankie Rio advised his boss as a tailor took measurements of Capone’s swollen physique at the Lexington Hotel. “You’re going to prison. Why don’t you have a suit made with stripes on it?”
“The hell I am,” Al shot back. “I’m going to Florida for a nice long rest, and I need some new clothes before I go.” In this irrationally jaunty mood, he ordered two new lightweight suits and made plans for an extended stay at his Palm Island hacienda.
“PRISON?” asked the Washington Herald’s headline, “BAH! ME TO FLORIDA, SCOFFS CAPONE.”
• • •
Just before ten o’clock in the morning on Saturday, October 24, Capone appeared in Judge Wilkerson’s court to hear his sentence. He was freshly shaved, wearing a dark purple suit accented by a white silk handkerchief tucked in the breast pocket; he was eager to get on with the business at hand.
The bailiff called the court to order, and Judge Wilkerson entered, looking even grimmer than usual, his bristly, unkempt hair grayer than it had been during the trial. Only seventeen days had passed since he had first called the court to order, but it seemed a lifetime ago. The intensity of the trial had drained all the participants, each of whom had a large stake in its outcome, none more than Capone himself, who had begun this trial with an air of youthful defiance, convinced of his ability to bribe and maneuver his way to freedom, and who was ending it suddenly vulnerable, chastened, and aged.
At the outset Michael Ahern vainly objected to the court’s attempting to pass sentence on his client. Capone edged forward to listen to the legal fracas, as the judge quickly dismissed the obstacle and proceeded briskly to the business at hand.
“Let the defendant step to the bar of the court,” Wilkerson declared. Capone, composed and tranquil as he had been throughout the ordeal, rose and approached the judge. His hands were at his back, and a marshal stood at his side. “It is the judgment of the Court that on count 1 the defendant is sentenced to imprisonment in the penitentiary for a period of five years, and to pay a fine of $10,000 and all costs of prosecution.” Capone did not flinch; this was precisely what he had expected: a series of concurrent sentences. What was $10,000 to him, or $100,000? “On count 5,” Wilkerson continued, “the defendant is sentenced to five years in a penitentiary and to pay a fine of $10,000 and all costs of prosecution. On count 9 the defendant is sentenced to five years in a penitentiary and to pay a fine of $10,000 and all costs of prosecution.”
Capone had also been convicted of two other counts; these were misdemeanors for failing to file tax returns in 1928 and 1929. For each, Capone received a year in the county jail and a $10,000 fine.
As the judge methodically listed the penalties, “Capone’s eyes seemed to harden,” a reporter noted, “and his fingers locked and unlocked behind his back. He thrust his hands in front of him and squared himself for what was to follow.”
Capone had been sentenced to a total of seventeen years in jail. Wilkerson now came to the crucial matter of how the jail terms were to be served: concurrently, as Capone expected, or improbably, consecutively. “The sentences on counts 1 and 5 are to be served concurrently,” Wilkerson declared. “The sentences on the other counts are to be consecutive and cumulative.” In sum, Capone would have to pay a total of $80,000 in fines and court costs, and to serve a total of eleven years behind bars, ten in a federal penitentiary and one
in a county jail. It was a far more severe sentence than anyone, especially Capone, had expected.
“Capone tried to smile again,” wrote Meyer Berger of the New York Times, “but the smile was bitter. He licked his fat lips. He jiggled on his feet. His tongue moved in his cheeks. He was trying to be nonchalant, but he looked as if he must have felt—ready to give way to an outburst of anger.” The money was meaningless to Capone, but the amount of jail time he must serve was staggering. “It was a smashing blow to the massive gang chief,” Berger continued. “He tried to take it with a smile, but that smile was almost pitiful. His clumsy fingers, tightly locked behind his back, twitched and twisted. He had hoped for a sentence of not more than three years.” Wilkerson’s sentence was, in fact, the longest jail term anyone had yet received for income tax evasion, but it might have been even more severe. If not for the lone juror who had argued for eight hours during the deliberation that the defendant had wanted to pay the tax and the government had prevented him, Capone might well have spent the rest of his life behind bars. As matters now stood, Capone was forced to realize the government of the United States had attained its goal: to put him away for as long as possible, no bargains, no deals, no chance to make amends. The legal Lilliputians had finally managed to tie down their gangster Gulliver.
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