“Eleven years, did you say?” asked Fink, disbelieving his ears.
“Yes,” the judge said, insisting that he wanted the convict escorted to Leavenworth Penitentiary, Kansas, immediately—that night, if possible. “He will serve the felony count first, before he serves the misdemeanor count. It is ordered that the marshal take custody of the defendant.” Thinking he was about to be shipped off to Leavenworth, Capone suddenly reached out toward Fink; the two men vigorously shook hands good-bye. The lawyers resumed arguing with the judge about the sentence, where and how and if it should be served, and eventually Wilkerson backed down. Capone did not have to leave for Leavenworth tonight; he could stay in the county jail, in Chicago, at least until the following Monday, while his lawyers filed appeals on his behalf.
As he tried to leave the courthouse, Capone faced fresh indignities. In the hallway, a collector for the Internal Revenue Service, a frightened looking little man, approached him and said, “I want to serve this.” With that, he handed Capone assessments for delinquent taxes in the amount of $68,644 and a notice that the U.S. government declared its intention to seize the contents of his safety deposit boxes and attach the Palm Island estate, the home into which he had poured so much money, the symbol of his fumbling attempt for respectability, the refuge he would not be seeing for many years. Capone reared back, as if preparing to kick the diminutive yet omnipotent tax collector in the shins, but he quickly regained his self-control and accepted the papers.
He retrieved his coat and hat, and then with the coat slung across his left arm and his fedora clamped down on his head, Capone the convict rode the elevator. Even here lurked another surprise: Mike Malone, the IRS agent who had been living at the Lexington Hotel under the alias De Angelo. Capone took one look him and realized De Angelo was a spy, but the convicted tax evader did not appear to be angry. “The only thing that fooled me was your looks,” he told the agent. “You look like a Wop. You took your chances, and I took mine.” As they reached the main floor, the door opened, and Capone faced hundreds of citizens of Chicago; the men who had drunk his beer, gambled in his joints, and slept with his prostitutes all strained for a glimpse of him as he bounded down the steps in the raw October air, climbed into a waiting car and, said Time, “disappeared into the sprawling city whose thousands of illicit night haunts were his Empire.”
• • •
Later that evening, Capone entered the county jail, where he paused briefly to talk with reporters, many of whom he knew by name or by sight, some of whom had accepted his gifts and favors and had then helped send him to jail. “What do you say, Al?” one asked.
“I haven’t anything to say,” he replied with a weak smile, adding, “Well, you can say I decided to get through with it.” Capone wasn’t angry with the press, he didn’t bother to criticize them for his misfortune, but he was deadly serious. “It was a blow to the belt,” he said of the eleven-year sentence, “but what can you expect when the whole community is prejudiced against you? I’ve never heard of anyone getting more than five years for income tax trouble, but when they’re prejudiced, what can you do even if you’ve got good lawyers?” He hurried inside the building, but the photographers were waiting for him in the corridors, hoping to snap a photo of Public Enemy Number 1 behind bars at last. Hoping to catch him growling, cursing, crying, grinning, anything that would satisfy the public’s craving to see the conclusion of the drama. As the wardens registered their celebrity guest and led him to a cell, he called out to the camera men: “Think of my family. Please don’t take my picture.” Most respected his wishes, but as one photographer raised his camera, Capone cried, “I’ll knock your block off!” and attempted to hurl a water bucket at the man.
The wardens quickly subdued the infuriated prisoner. Locked in his cell, Capone discovered he had company, a vagrant who was unable to pay a $100 fine for a disorderly conduct charge. The men spoke briefly. “I’m gonna help this guy out,” Capone decided; he retrieved a C-note from his pocket and gave it to the vagrant, who used it to pay his fine. So Capone bought himself a little privacy. That night, brooding in his cell as the reality of the situation settled over him, he was served his reformatory repast: a tin plate of corned beef and cabbage. He refused to eat it, restricting himself instead to rice pudding, which he swallowed between gulps of tepid coffee.
As Capone settled into jail, word of his sentence raced along the darkened streets of Chicago, streets smelling of wet fallen leaves, factory exhaust, and hastily brewed beer; it was repeated in homes, amplified on the radio, fixed for posterity in newspaper headlines across the nation: Capone guilty, Capone sentenced, Capone jailed. “CAPONE GETS 11-YEAR TERM; FINED $50,000—PENALTIES MAY MULCT HIM OF HALF A MILLION,” announced the New York Evening Post, which explained that “Judge James H. Wilkerson dealt the century’s most sensational criminal a crippling blow today.” “HOODLUM, STUNNED BY OUTCOME, CURSES AS HE FACES TIME IN PENITENTIARY,” declared the Kansas City Star, with obvious relish. Not all editors were pleased, however; a large sector of the press described the conviction of Al Capone for income tax evasion, of all things, as a legalistic sham, a mere technicality. “It is ludicrous that this underworld gang leader has been led to the doors of the penitentiary at last only through prosecutions on income tax and liquor conspiracy laws,” the Boston Globe complained, while the Washington Evening Star observed, “No matter how satisfactory will be the eventual incarceration of Capone in a Federal prison for the failure to make an income-tax return, as a technical means to the end of getting him in jail, there will remain the sense that the law has failed.”
The severity of Capone’s term—eleven years—shocked everyone. The smart money had said he would be sent away for two, perhaps three years—long enough at any rate to miss the Chicago World’s Fair of 1933. Now it seemed that Al would not go free until 1942. The World’s Fair would be long gone, indeed the world would be a different place by then. “No one seemed to believe that the ‘Big Shot’ was at last on the way to jail,” Meyer Berger reflected, “that the man who had controlled the city’s warring machine gunners, beer runners, panderers, gamblers and other lawless elements had finally been tripped up and hog-tied. It was the general idea that ‘he’s much too big for that; got too much money and too much influence.’ ”
The blunt fact of his conviction ended the secret life of Al Capone, and he began a new life as a convict, shorn of privacy. In its clumsy, incomplete way, the trial had succeeded in piercing the secrecy in which he had always moved. From this time forward, he would be stripped of his social camouflage; his life was about to become one long documentary, everything on the record, the story of a prisoner in the custody of the state, subject to an omnipotent bureaucracy and relentless scrutiny that would eventually leave him paralyzed and powerless.
• • •
Desperate to keep their client from going to Leavenworth, Ahern and Fink appeared before three judges of the U.S. Circuit Court of Appeals, Seventh Circuit. It was now Monday, October 26.
Fink did most of the talking, filling in the judges on the status of Capone’s case. “As you have perhaps read in the newspapers, he was tried downstairs and on Saturday he was convicted,” he began. “As soon as the sentence was pronounced, we filed our petition for an appeal, and Judge Wilkerson allowed the appeal. . . . Unless we can get some relief from the Circuit judges, the prisoner will go down to Leavenworth tonight to begin his sentence in the penitentiary. Now, as I view it, there isn’t any reason in the world why this man should be denied bail.”
Sidestepping the issue of bail, the judges asked Fink on what grounds he was appealing. The question suggested they might be more sympathetic than Judge Wilkerson had, and the prospect of reversing the conviction brought the elderly little lawyer to life.
“As to the particular counts upon which the verdict has been returned,” Fink replied, “they charge merely this and nothing else: that the defendant was a resident of this district and that he had a gross tax and deductions an
d should pay so much in income tax. When it comes to the charging part of the indictment, the count says that the defendant did willfully and fraudulently attempt to evade and defeat said tax, and this is all. To tell a defendant only that six years ago he made a willful attempt to evade his income tax for the year before is to tell him absolutely nothing.” Fink appeared to gain the sympathy of the judges, who pressed for more details and legal citations. For once, Fink’s long years of legal experience came into play, and he was able to mount an impressive display of justification for his position, especially concerning the three felony counts of which Capone had been convicted. “The evidence as to any expenditures is very, very meager,” he told the triumvirate, “and I don’t think there is any evidence of expenditure for the years 1925 and 1926, and in 1927, except that the defendant lived at a hotel—I have forgotten the name of it. What is the name of that?”
“Metropole,” Dwight Green interjected.
“Metropole Hotel,” Fink resumed, “together with a lot of other fellows, presumably gangsters, or at least claimed by the government to be gangsters, and that somebody paid the bills there, and that the defendant paid the bills himself, and that for the year 1925 he made a statement to two police who were out there on a raid in their presence that he owned a gambling house. The fact that he owned a gambling house does not prove he made a profit, and we contend that, if Your Honors please, there is no evidence on the record upon which the court should have submitted the case to the jury.”
Later in the discussion, Green reviewed the government’s case to impress the weight of the evidence upon the judges. “He stated that he was in the gambling business,” Green said of Capone, “and that Guzik was his business associate.”
“Who stated it?” asked Judge Alschuler.
“The defendant stated that in admissions.”
“Did he testify?”
“No, he didn’t testify,” Green said. “He stated that in admissions to various officials down in Florida. For instance, he said to some of the shopkeepers, one of them at least, ‘Guzik is my financial secretary.’ And then there were a number of wire transmittals that came from Chicago to Florida that were, as we proved, sent by Guzik, and then we showed that the defendant had an organization here of some kind in Chicago which consisted of at least about eighteen men, who all lived together at the Metropole Hotel, and there on several occasions the defendant himself paid the entire bill.”
“Might not that be expenses rather than income?” asked the judge.
Green conceded that might be the case and resumed his review, focusing on Capone’s profits from the Cicero gambling houses. “There was Guzik running it, and Alphonse Capone was in the place at the time that the business was conducted, and we show there about $120,000 worth of profits, and we showed the defendant’s name on one of the checks.”
The arguing went on and on, but at the end of the day nothing had changed. Capone was still guilty and faced the imminent prospect of a decade in Leavenworth.
• • •
There remained but one loose end for Judge Wilkerson to tie up, which he did two days after the appeal, on October 28. Emboldened by the guilty verdict returned against Capone, Judge Wilkerson made his determination in the contempt charge against D’Andrea, who, despite the marshal’s badge he carried as faithfully as a religious medal, belonged to an “organized body of men whose outlaw camp is at the Lexington Hotel. Of this body, defendant Capone was chief. . . . It is perfectly clear from a long array of conclusive circumstances that this band exercises a coercive influence over those with whom it comes in contact, which is nothing less than insurrection against the laws of the United States.” The judge was especially unhappy with D’Andrea’s murderous scowl. “The court would have been blind if it had not observed the intimidation practiced on witnesses almost under the eyes of the court. It must be borne in mind that this respondent was sitting with his concealed firearms behind the defendant while glaring at witnesses who were on the point of remembering something about the business in which defendant was engaged and which the witnesses could not possibly have forgotten; yet witnesses faltered and failed at the critical point.”
The judge proceeded to discredit virtually every defense witness, as well as the defense lawyers, Ahern and Fink, insisting that they all had been coerced—not by D’Andrea, but by Al Capone himself. “To this camp at the Lexington were summoned the witnesses who testified to the defendant Capone’s losses on horse races. To that camp were summoned counsel for conferences. And from that camp, under what coercive influences we can only conjecture from what transpired in court, came that array of shocking perjury with which the court was confronted during the closing days of the trial. We had here the spectacle of witness after witness testifying in a way which was psychologically impossible, pretending to remember things which in the very nature of the human mind the witness could not have remembered. . . . It was perjury on its face.” Coercive influences, shocking perjury, psychologically impossible: with these phrases Judge Wilkerson poured out the weeks of anger and frustration he had endured in the effort to get Capone behind bars. Ahern and Fink strenuously disagreed with his characterization of their dealings with their client. Why, they had never been “summoned” to the Lexington, they declared, and they certainly had never been coerced by Capone or anyone else except, they wished to add, the court.
“I still think if I had been in your place, I would not have gone down there,” the judge remonstrated.
Having nothing left to lose, Ahern decided to lecture the judge. “Your Honor, when you are dealing with gamblers you are not dealing with ministers’ daughters, and I would much rather interview those gamblers some place else rather than my office.”
“I don’t blame you,” said the judge, unmoved.
As he began to deliver D’Andrea’s sentence, Wilkerson dropped his voice. The pistol D’Andrea had carried into the courtroom, said the judge, “was less serious than the perjury.” As a result, he recommended a sentence of “six months in the county jail.”
D’Andrea’s sentence was not so onerous as it seemed, for his cellmate at the Cook County Jail was none other than Al Capone, who was already busy bribing prison officials and arranging extraordinary jailhouse privileges for them both. As the government of the United States was about to discover to its dismay, it was one thing to put Public Enemy Number 1 in jail, but it was quite another to put him out of business.
CHAPTER 11
Circles of Hell
WITHIN DAYS OF HIS ARRIVAL on October 24, 1931, Al Capone transformed the Cook Country Jail into the newest outpost of his fiefdom, and he was soon as comfortably established there as he had been in his suite at the Lexington Hotel. Languishing in his oversize cell throughout the fall, the most famous convict in the nation conducted his affairs almost as if he were at liberty. Even better, the taxpayers now bore the cost of his lodging and upkeep as well as providing that other essential: security.
In those days rank had its privileges, especially in the Cook County Jail, where the warden, presciently named David T. Moneypenny, proved suspiciously eager to accommodate Capone’s every whim. He assigned the famous prisoner to a quiet, private, oversize cell on the fifth-floor hospital ward. Over 1,500 prisoners crowded the jail, but Capone’s exclusive quarters could have held a dozen or more men. Amid these luxurious surroundings, he slept as late as he liked, and he avoided the common run of criminals. He shared his VIP accommodations with his bodyguard, Philip D’Andrea, and together they enjoyed amenities that the average con would have envied: box spring mattresses, a radio, and an ample supply of Mae Capone’s cuisine, which was delivered regularly, still hot; a typical meal consisted of kidney stew, bread, and butter. On Thanksgiving Day, Capone, D’Andrea, and several friends and family members enjoyed a lavish feast served by a black butler.
As winter approached, Capone became ever more entrenched in the Cook County Jail. Conviction or no conviction, he conducted business as usual from his cell; he
obtained access to the jail’s telegraph system, and he placed calls on the jail’s phone to his family, lawyers, bookies, and other well-placed contacts in the city administration. Since he could not get out to see the men he needed to see, they came to him. “Today was visiting day on Capone’s floor at the jail and he had some distinguished visitors,” the New York Times dryly noted. “They included Dan Serritella, State Senator and former city sealer, Alderman William Pacelli, and Harry Hockstein, former city sealer.” Before long Pete Penovich, Matthew and John Capone, Murray “The Camel” Humphreys, and other loyalists were also calling on “Snorky” in his new “office” to bring him up to date on the latest take.
Surrounded by activity and friends, Capone remained buoyant, and he expected to go free at any time, following the example set by his older brother. In April 1930, Ralph Capone had been indicted for the same offense, income tax evasion, also in Judge Wilkerson’s court, and he was supposed to serve three years in Leavenworth Penitentiary, which, compared to the Cook County Jail, was hard time. Ralph had managed to stave off jail with a barrage of appeals, however, and was still at large in Miami. No one could say whether he was cunning or just lucky. The government, it seemed, had all but forgotten about him, although the zealous Chicago Crime Commission continued to list him as Public Enemy Number 3. Al, who perennially ranked first on the list, saw no reason why he wouldn’t fall through the cracks as Ralph had, and he would at last put all this unpleasantness behind him.
Then, without warning, Ralph’s number was up. His last appeal—before the U.S. Supreme Court—failed, and he was ordered to report to Leavenworth Penitentiary immediately. “CAPONE’S BROTHER ON WAY TO GIVE UP,” the New York Times summarized on November 4. “Counsel Calls Him from Florida to ‘Come In’ and Surrender in Chicago Tomorrow. FURTHER APPEALS FRUITLESS.”
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