Chicago Tribune February 23, 1936
How Justice Caught Up with Boss Criminal
This is the third and concluding article of three on the rise and fall of Al Capone. Chicago’s boss criminal.
By GUY MURCHIE JR.
On Jan. 15, 1929, a big yellow car pulled into the sheriff’s parking space at the Miami Jocky club race track. A stout man climbed out with two other men and a couple of gayly dressed girls.
As he did so a murmur breezed through the crowd.
“Look! There is Al Capone!”
A policeman hurried over to greet the celebrated visitor.
“Hello” returned the big man, pulling a $10 bill out of a roll he held in his hand.
The policeman pocketed the money, while Capone walked on over to the ticket office, conversing with his friends, occasionally smiling to the crowd.
Just as the group arrived at the main gate a photographer stepped from behind a post and raised his camera.
“Cover up! Cover up!” shouted the two men accompanying Capone.
Capone ducked and covered his face with his hat. The two were members of his bodyguard, who had been instructed to warm him of threatening cameramen.
Capone knew the devastating effect of constant publicity. Already his name was a household word throughout America and civilized Europe, and more and more the responsible citizens of the nation were coming to feel that while Al Capone remained at large there could be no real law and order in the United Siates. News, relentless and erosive, was crystalizing the forces against him, forces that must inevitably become too much for him, forces that he had good reason to fear.
Two reporters approached the no- torious man as soon as he had en- tered the gate.
“Mr. Capone, Who’s going to win today?”
“Mr. Capone, how long do you expect to be in Florida? ”
“Please,” protested Al. “Why can’t you leave me alone? What have I done? I’m living a peaceful life here in Florida, trying to forget all about Chicago, and I’m blamed in the newspapers for every murder nnd crime committed in the United Stales. You’ve got the wrong man. I haven’t got any news for you. All I want is to be left alone. Please, boys.”
July 14, 1930
Thus did Capone attempt to dodge the inevitable. But it was too late. Already he was known as the man who had profited more than any other from prohibition, and the United States Department of Internal Revenue was beginning to collect data about his income, for which he had never paid any tax nor even filed a return.
Al Capone had taken extraordinary precautions to preserve the secrecy of his money affairs. He never legally owned most of his property, for he seldom took title to his acquisitions, He only controled them, while his friends and associates “owned” them. His bank was his front trousers pocket, especially made very deep and ample to hold all he wanted to carry in $100 and $500 bills.
But occasionally even he slipped up-and inch by inch the newspapers and the law closed in.
A sample Capone arrest came on May 8, 1930, when the gang boss was arrested in Miami and held for investigation on the orders of Mayor C. H. Reeder, City Manager Wharton, and Director of Public Safety McCreary. Though somewhat used to such indignities by this time, “the big fellow” was thoroughly enraged.
“Who does Reeder think he is?” he roared. “I haven’t done anything to deserve being arrested. I’m going to charge Reeder and McCreary with conspiracy. This is the last time they ll do this to me. They’ve been reading newspapers. All my troubles begin with the newspapers.”
A few days later, after he had calmed down somewhat from the brief interruption in his social rou- tine, Capone explained to a noted French reporter sent to interview him:
It is very simple; when the police do not find the author of a crime they say that it was Al Capone. But I have other things to do than kill people. I have my business. People only imagine that I kill. Sometimes people even write to me to ask me to do crimes in their interest. A big English lady wrote me one day to offer me 20,000 pounds sterling if I would come and spend the week-end at her home and take the occasion to get rid of a bothersome neighbor…Ridiculous…Have a cigar.
On Oct. 6 of the following year, 1931, Al Capone found himself in the most uncomfortable spot he had yet known. That was the day he was taken into custody by the United States marshal at Chicago for income tax evasion, and on which the trial began that was to send him to his present incarceration at Alcatraz. Income tax trials already had proved an almost sure-fre method of putting criminals behind the bars, and Capone knew his chances of escape were slim. For that reason he had been stalling and dodging the issue for more than two years, putting off as long as possible what he feared would be his undoing.
As early as Feb. 17, 1929, before his arrest in Philadelphia for gun-toting, Capone had been served in Florida with a subpoena to appear before a federal grand jury in Chicago. He did not choose to comply.
Al Capone’s cell in Eastern State Penitentiary, Philadelphia, PA
He served here from May 17, 1928-March 17, 1930
His prison term In Pennsylvania in 1929 saved him for a while, and his doctor’s excuse that his “physical condition is such at this time that it would be dangerous for him to leave the mild climate of southern Florida and go to the city of Chicago” helped for a bit longer. But at last he was forced to come north, and on March 2, 1931., Judge Wilkerson of the United States court in Chicago sentenced him to six months in Cook county for “contempt of court.” It was while he was free on bond pending appeal from this decision to the United States Circuit Court of Appeals that the income tax trial began.
Attorneys for Capone in this case were Albert Fink and Michael Ahern. Their first move had been to confer with United States District Attorney George E. Q. Johnson, who was to prosecute Capone, and to arrive at an “understanding” with him. The understanding was that if Capone would plead guilty the district attorney would recommend a sentence o( two and one-half years at Leavenworth. As the district attorney was known to have conferred in turn with the attorney general and an assistant secretary of the treasury, Fink and Ahern assumed that the government was solidly behind the district attorney and that the judge would therefore, as was customary, follow the district attorney’s recommendation to the letter. Up to that time no defendant pleading guilty to income tax evasion had received a sentence of more than two and a half years, so the Capone attorneys felt an added assurance that their client would be dealt with as recommended.
But they did not know Judge Wilkerson.
On July 30 Capone appeared in Judge Wilkerson’s court for sentence on his plea of guilty, made six weeks earlier. It was 10 o clock in the morning. The thick-lipped gang leader was arrogant and assured with the word of his lawyers that “everything is all set.” Silting in his chair, he cast his dark eyes defiantly upon the little judge.
Then Wilkerson spoke:
The United States district attorney has stated that he wishes to offer suggestions with reference to the judgment to be entered in these cases. The pleas of guilty, I am advised, were entered upon his understanding to make such recommendations. Of course, the court will receive his suggestions and give to them the weight to which the views of counsel for the government are entitled.
It is always understood, however, that in consenting to receive these suggestions the court does not hind itself to adopt them or to enter judgments in conformity therewith. There can be no exception to this rule.. . .
The size 19 collar around the throat of the well fed defendant began to wilt a little. Judge Wilkerson continued:
The court may not now say to the defendant that it will enter the judgment suggested by thq prosecutor…This defendant must understand that he cannot have an agreement as to the judgment to be entered in the case.
By the afternoon session the great Capone was wiping his brow at frequent intervals, and his calm confidence was replaced by a grumpy attention to his lawyers’ desperate attempts to argue Wilkerson into submission.
Said Lawvyer Ahern in scandalized tones:
We were led to believe that the recommendation would be approved by the court…Unless we had been confident that the court would act according to the recommendation agreed upon, the plea of guilty would never have been entered….
“You have not any doubt,” replied the judge, “that I stated the law correctly this morning?”
“It the court would follow the recommendation of the district attorney as made,” said Mr. Ahern, ” and if we could have the assurance of the court… ”
“Suppose the court does not agree with that?” snapped Wilkerson.
” Well, then,” said Ahern defensively, “that is what I was coming to, if it please the court.”
Judge Wllkerson looked squarely at him, then shifted his gaze to the frowning Capone. “Certainly it is an unheard-of thing in a criminal proceeding that anybody, even the court itself, could bind the court to the judgment which is to be entered after the hearing…The court will listen, as I said this morning, to the recommendation of the district attorney. The court will listen to the recommendation of the attorney general…But the thing that the defendant cannot think, must not think, Is that in the end the recommendations of the attorney general and of the secretary of the treasury, all considered, the court is bound to enter judgment according to those recommendations….
“There have been some unfortunate things in connection with this case. There have been some publications which were contemptuous in character and tending to bring the administration of justice in the federal court into disrepute. They have even gone so far as to announce in advance what the period of punishment would be.
“It is time for somebody to impress upon this defendant that it is utterly impossible to bargain with a federal court.”
The “deal” was off.
Al Capone and Judge Wilkerson During Capone’s Trial.
The big question in the of the worried Fink and Ahern and of their even more worried client now was: Can the guilty plea be changed to not guilty?
The following day Judge Wilkcerson ruled that Capone in this case would be permitted to change his plea. Capone did change it, and the trial was set for October.
On Oct. 6 Alphonse Capone, defendant, reentered Judge Wilkerson’s court. This time hie knew better what sort of man sat behind the high desk. Since July 31 he had been methodically exercising under the guidance of his head trainer, long walks, setting-up drills, and workouts with the gloves in his private gymnasium to make himself fit for the rigors of prison life, He knew he might get as many as three or four years behind the bars, which would go hard with anyone as soft as he had been while living amid the silken luxury of his Palm Island palace.
The trial began. From the start it was clear that the government would have to rely on circumstantial evidence in its contention that Capone had pocketed several hundred thousand dollars at the least between the years 1924 and 1929. Dwight H. Green, able prosecutor who did much of the work of preparing the case as assistant United States attorney, made the opening statement for the government. The defense waived its opening statement. Then the jury, consisting of eleven men from outlying country towns and a twelfth from Chicago, settled back to hear the evidence.
Mr. Green examined one Chester Bragg, an insurance agent, about Capone’s interest in the gambling business:
“Describe your first meeting with Capone.”
“In 1925 I was with a group from the West Suburban Ministers and Citizens’ association on a raid at 4818 West 22d street, Cicero. It was the Saturday of Derby day, In the month of May.”
“Did you have any conversation with the defendant?”
“Describe the conversation.”
“Well, my job was to watch the front door and keep anybody from going in or out. A big, powerful man tried to get in and finally forced the door open. I got sore and asked him, ‘What the hell do you think this is, a party?’ and he said: ‘Well, it ought to be a party. I’m the owner of this place.'”
“Describe what you saw upstairs.”
“There were roulette wheels, pool, billiard, and crap tables, and chuck-a-luck outfits.”
Thus, laboriously adding the bits of testimony of many witnesses together, the government showed that Capone not only had claimed ownership of gambling resorts but that these same places were doing a large business, with annual net profits in six figures.
But the that nailed Capone more than any other single item was a letter written by a Washington attorney named Lawrence P. Mattingly, whom the gangster had once made his agent in an attempt to settle his income tax out of court. With a power-of-attorney card signed by Capone, Mattingly gathered information and estimated Capone’s income during the years in question. Then he turned over to the department of internal revenue in the federal building in Chicago a statement which concluded with the following incriminating paragraph:
Notwithstanding that two of the taxpayer’s (Capone’s) associates from whom I have sought information with respect to the taxpayer’s income insist that his yearly income never exceeded $50,000 in any one year, I am of the opinion that his taxable income for the years 1925 and 1926 might fairly be fixed at not to exceed $26,000 and $40,000 respectively and for the years 1928 and 1929 not to exceed $100,000 per year.
LAWRENCE P. MATTINGLY.
Alcatraz prison, near San Francisco, where Capone now is serving his sentence. Criminals call this place “the Rock.”
Al Capone had hired Mattingly for his protection, but, through this amazing statement placed in the hands of the government by Capone’s own legal agent, his case was lost. Despite a desperate defense based on the theory that what Capone earned by gambling he also lost by gambling, that therefore none of this money was really income, the jury returned a verdict finding the defendant guilty on five counts. The counts were:
1. Felony—attempt to evade and defeat tax for 1925; income charged, $250,000.
2. Felony—attempt to evade and defeat income tax for 1926; Income charged, $195,000.
3. Felony—attempt to evade and de- feat income tax for 1927; Income charged, $220,000.
4. Misdemeanor—failure to file income tax return for 1928.
5. Misdemeanor—failure to file income tax return for 1929.
A few days after the verdict the prisoner returned to the court to receive sentence.
“Let the defendant step to the bar,” said Judge Wilkerson.
Then the judge read out sen- for the five counts: (1) Five years and a fine of $10,000; (2) five years and a fine of $10,000; (3) five years and a fine of $10,000; (4 and 5) One year in the county jail and a fine of $10,000; and all prose. cution costs.
Capone was unmoved, but kept his eyes glued on the judge as the sentence was read. The individual sentences were about what he had after a guilty verdict. Now lie cocked his cars for that lovely word “concurrently.”
“The sentences on counts 1 and 2,” said Judge Wilkerson, “are to be served concurrently. The sentence on the other counts are to be consecutive and cumulative; that is to say, the sentences on counts 1 and 2 are to be followed by the sentences on counts 3, 4, and 5.”
Capone gasped and mopped his brow with a $2.75 handkerchief. That meant eleven years behind the bars and a total payment of $80,000. Capone was led away, black in the face and biting his lips.
Capone en route to Atlanta prison with former U. S. Marshal H. C. W. Laubenheimer. The Chicago boss criminal served time in Atlanta before his transfer to Alcatraz prison.
At the jail door he snarled to reporters: “It was a blow below the belt, 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?”
A photographer approached, but Al covered his face.
“Think of my family; please don’t take my picture,” he said.
Al Capone’s Alcatraz Cell: B-181 (Later renumbered to B-206).
Five years later, in 1936, confined beyond all hope of escape inside the of Alcatraz federal in San Francisco bay, Al Capone’s attitude was very different. The man who had once triumphed over all rivals in the great war to reap the fruits of prohibition was applying his qualities to the tribulations of prison life.
In the only complete interview obtained from any Alcatraz prisoner since the federal penitentiary was established there, one of Capone’s fellow convicts, one Harry (Boy) Johnson, who recently was pardoned and deported to England, spoke thus:
Al Capone is the only one who is standing up to the life in Alcatraz. He’s the best of them all…but I don’t think Al will ever get out alive.
The boys…why, they love him. It’s the other side—they pick on him all the time. They dock his privileges for almost nothing. Once all he did was to go Into his cell to spit…but I’ll tell all that…
Al has been in the hole four times…God, that hole Is awful! It is ‘way down in the rock, dark, damp, and gloomy. They just take all the manhood away from you before you get there. You are stripped of everything and shackled like a beast. They keep you that way for four hours—naked and chained. Then they throw your clothes in to you and you stay there about ten days on a diet of bread and water. It turns men crazy.
The first time Al went was when he was working in the laundry. A fellow threw a towel at him, and Al got mad. Ile let fly and socked him in the eye. It was a grand smack. That guy s eye went all fluey. The next time there was some food Al didn’t want. It is a rule that you have to finish your food. If you don’t you forfeit a meal. Al already had forfeited two meals, and then he got a bit fresh with the guard.
The guards are the toughest of any prison. They have to pay them as high as $9 a day to get them to stay there. They are a bum lot for the most part and take a pleasure in making petty rules which they enforce, as if the jail wasn’t enough without adding to it.
Everything is lousy about Alcatraz except the food…Of course, there are so many guards they have to have good chow. There are forty houses for the screws (guards). They live like fighting cocks—chicken and what you want. Say, sometimes I used to keep the white meat of chicken back, and I would hide it in a baked potato for Al, or sometimes I used to push It under a mess of vegetables. I’d do anything In the world for that fellow.
When Al first arrived he was in, then in the tailor shop. Now he is in charge of the library, and that is one of the best in any jail in the country. There are more than 40,000 books, and as they’ll never get onto the code, I don’t mind telling you that books form a very important part.
Magazines are censored, so that every word relating to police or gang stuff is torn out…. That is one thing Al Capone gets—all the current magazines, and he passes them out among the other boys. Al is the brightest spirit in the band. It is his one love and his one relaxation.
You’ve got to understand that when men are put away like that, put away from every human emotion, they are apt to go right back to their kid days. We think more about our mothers than any woman we knew. Al has just written a song about ‘Mother,’ and it’s wonderful. He is going to it to a society for the betterment of prisoners, Gee, that song just makes us all cry. Al plays it sings it in a low, soft voice. I can’t just remember all the words-you know, I’m still kind of nervous and shy-but I do remember it went something like this:
Mother, aw the daylight’s fading,
Through the mist I see your smile;
Mother, so the years are passing—
Wait for me a little while.
Though the paths of life are bitter,
Dark the road and long the way,
Mother, you’ll be waiting for me
At the break of day.
It’s something like that. We’ve all sung it so much the words kind of stick. When Al wrote that song he gave the boys that helps them quite a bit.
Al has just one he loves. He has a banjo mandolin. They say he paid over $350 for it. And he can play and sing any song you want. All his leisure he goes down in the basement and practices. Al has provided almost all the instruments for the band and all the music. That’s all he can do. After I formed the baseball team, Al wanted to join. The deputy warden wouldn’t let him.
Al looks well and eats his food. He sleeps pretty good, too. He’s counting the days for another three years to pass. He won’t get a parole. There’s no parole from Alcatraz. And there s no escape. There’s a yard all ’round the prison, high walls around that again, and the guards have orders to shoot at sight. High gun towers, and the electric eye. If you could get away you wouldn’t make the mainland. The currents are too bad, and you’d be shot down anyway.
The one thing I’m scared of is when the break comes will put a bullet into the Big Shot. I don’t mean one of the boys; he s still the Big Shot to them.
Chicago Sunday Tribune
October 18, 1931
Capone spent 4 ½ years on Alcatraz. Capone eventually became symptomatic from syphilis, a disease he had evidently been carrying for years. In 1938, he was transferred to Terminal Island Prison in Southern California to serve out the remainder of his sentence, and was released in November of 1939. Capone died on January 25, 1947, in his Palm Island Mansion from complications of syphilis.