Capone: The Life and World of Al Capone (60 page)

"Why didn't you keep them permanently?"

"Well, it was an illegitimate business."

Joe Yario, a self-styled "gambling broker," operating in a Chicago "soft drink parlor" (his euphemism for "speakeasy"), refers airily to "two, three, ten thousand dollar losses," but cannot specify a single individual bet.

Judge Wilkerson: "Do you know what it is to remember anything?"

Yario: "I never kept no books."

Budd Gentry, a Hialeah bookie, is asked by Dwight Green to name the horses Capone backed in 1929 for a purported loss of about $10,000 each. He shakes his head.

"Can you give the name of just one horse that the defendant bet on?"

"I have five or six in mind, but they just won't come out."

In any event the argument is futile, a grasping at straws, for taxpayers may deduct gambling losses only from gambling winnings, and Capone's lawyers insist that he hardly ever won. All the bookies' testimony shows is that he did receive income totaling, during the year in question, at least $200,000. For the additional income, evidenced by his possessions and expenditures, the lawyers advance no plausible explanation.

Torrio, who has been sitting quietly apart since the first day, is expected to testify, but the defense counsel never calls him. Nor do they call Capone.

Friday, October 16

There is a flurry among the spectators as Beatrice Lillie, the chief attraction of The Third Little Show, playing at the Great Northern Theater, visits the courtroom with her husband, Lord Peel.

Prosecutors Grossman and Clawson between them recapitulate the government's evidence. Fink then leads off the defense summation. "Suppose Capone believed that money he received from so-called illegal transactions was not taxable," he asks the jury, "suppose he discovered to the contrary and tried to pay what he owed, would you say he ever had an intent to defraud the Government?" He paused and gazed fondly at his client. "No, and neither would I. Capone is the kind of man who never fails a friend."

The defendant swallows hard, and his eyes fill.

Ahern continues the summation with an historical analogy. "In Rome during the Punic Wars there lived a senator named Cato. Cato passed upon the morals of the people. He decided what they would wear, what they should drink, and what they should think. Carthage fell twice, but Carthage grew again and was once more powerful. Cato concluded every speech he made in the Senate by thundering, `Carthage must be destroyed!' These censors of ours, these persecutors, the newspapers, all say, `Capone must be destroyed!' The evidence in this case shows only one thing against Capone-that he was a spendthrift. . . ."

Saturday, October 17

Reporters and spectators have been impressed by the diversity, richness and colors of Capone's wardrobe. In the eleven days of the trial he has worn as many different ensembles, ranging from light browns through grays and blues to a climactic grass green on this, the final day.

Johnson, speaking at length for the first time, winds up the summation for the government. His winglike coiffure flapping with the vehemence of his emotions, he assails the Capone legend. "Who is this man who has become such a glamorous figure? Is he the little boy from the Second Reader who has found the pot of gold at the end of the rainbow that he can spend money so lavishly? He has been called Robin Hood by his counsel. Robin Hood took from the strong to feed the weak. Did this Robin Hood buy $8,000 worth of belt buckles for the unemployed? Was his $6,000 meat bill in a few weeks for the hungry? No, it went to the Capone home on Palm Island to feed the guests at nightly poker parties. Did he buy $27 shirts for the shivering men who sleep under Wacker Drive? . . ."

Capone casts despairing eyes around him, as if appealing to the audience against such gross injustice, he who has performed so many good works.

Without using the terms "net worth" or "net expenditure," Judge Wilkerson expounds the principles underlying them in his charge to the jury. Regarding the crucial Mattingly letter, he explains: "The statements of a duly authorized agent may be proof against the principal the same as if he had conducted in person the transaction in which the statements were made . . . if you find that under the power of attorney and the authority, if any, given at the interview in the revenue agents' office, considered with all the other facts and circumstances shown here in evidence, Mattingly was employed to get together information and to make an estimate and to give his opinion thereof to the bureau, then the fact that Mattingly made a statement as to what his opinion on that subject was is a fact to be considered by you. .. .

The jury retires at 2:40 P.M.

Capone stands in the corridor, forcing a smile now and then at people who stare at him from behind a cordon of guards. When night falls and there is still no word from the jury, he decides to wait at the Lexington.

Watching the windows of the jury room from another section of the block-wide building, the reporters can see the shirt-sleeved jurors locked in debate. Shortly before eleven, almost eight hours since they entered the room, a burst of applause resounds through the sixth floor. The last dissenting juror has bowed to the majority.

Notified by phone, Capone bundles himself into his overcoat, slaps on his fedora, and hurries down to his limousine. By eleven o'clock he has returned to his seat at the counsel table, sweating from the exertion, and judge Wilkerson is putting the question to the foreman of the jury, "Have you reached a verdict?" The foreman hands the bailiff a sheet of paper. The bailiff passes it to the clerk of the court, who reads it to the court.

The verdict indicates a considerable muddle in the minds of the jurors, and it confuses prosecution and defense alike. On the first indictment for 1924 they vote not guilty. On three of the twenty-two counts in the second indictment-Nos. 1, 5 and 9, charging tax evasion in 1925, 1926 and 1927-they vote guilty. Guilty also on counts 13 and 18, charging failure to file a return for 1928 and 1929. On the remaining counts, all charging tax evasion, not guilty. The confusion arises from mutually exclusive verdicts covering 1928 and 1929. The puzzled attorneys fail to understand how Capone can be guilty of filing no returns (13 and 18), yet at the same time be innocent of tax evasion (14 to 22). Nevertheless, after conferring with the judge, Johnson lets the verdict stand undisputed. The defense counsel will file an appeal with the U.S. Court for the Seventh District, arguing that the indictments had failed to specify sufficiently the means Capone employed to evade income tax.

Saturday, October 24

Flamboyant as ever in a heather-purple pinchback suit, Capone flashes an unnaturally wide smile at the audience, shakes Ahern's hand, and sinks heavily into his seat. He has cut his index finger, and it is bandaged. He jumps up a moment later, his hands locked behind his back, as judge Wilkerson begins to read the sentence.

"It is the judgment of this court on count 1 that the defendant shall go to the penitentiary for five years, pay a fine of $10,000 and pay the cost of prosecution."

Capone's fingers twist and turn behind his back, but the forced smile lingers.

On counts 5 and 9 the judge imposes the same sentence; on counts 13 and 18, a year each in the county jail plus the same fines and court costs.

The smile fades at last.

"The sentence on counts 1 and 5 will run concurrently," the judge continues. "The sentence on count 13 will run concurrently with numbers 1 and 5, and count 18 will run consecutively." The earlier six-month sentence for contempt of court is also to run consecutively with count 1. The indictment for violation of the liquor laws is not pursued.

It adds up to eleven years' imprisonment, fines aggregating $50,000 and court costs of $30,000-the stiffest penalty ever meted out to a tax evader (though there have been many stiffer ones since) .

Wilkerson denies bail, pending the appeal, and asks U.S. marshal Henry Laubenheimer when he can remove Capone to Leavenworth. Capone gasps as Laubenheimer replies, "At six-fifteen tonight, Your Honor." But following Ahern's plea, Wilkerson agrees to let Capone stay temporarily in the Cook County Jail. "Good-bye, Al, old man," says Fink, his voice breaking. Silently and tearfully, Ahern clasps his client's hand.

As Capone leaves the courtroom, surrounded by deputy marshals, a little man prances up to him, brandishing an official-looking document. "Internal Revenue," he says. "I have a demand for liens on the property of Alphonse and Mae Capone." To prevent the couple from selling or transferring any assets before satisfying the tax claims, the bureau has frozen them with what it terms "a jeopardy assessment." Capone turns crimson, hurls an obscenity at the little man, and draws back his foot to kick him, but the deputy sheriffs march him into their office for fingerprinting. Recovering his self-control, he waggles his bandaged finger at the officer. "This is one finger the Government doesn't get."

In the freight elevator he finds himself next to the man he has known for two years as Mike Lepito, now revealed to him as Special Agent Malone. "The only thing that fooled me was your looks," he says without rancor. "You look like a wop." He manages another dim smile. "You took your chances and I took mine. I lost."

"Get enough, boys," he says to the news photographers. "You won't see me again for a long time." The deputy marshal assigned to take him to the jail in an unmarked car hangs back, fearing a rescue attempt. "I wouldn't go into that car for all the money in the world," he confides to Sullivan. So the revenue agent and a man from the narcotics bureau assume the risk.

To the reporters who have followed him to the jail, Capone says: "It was a blow below the belt, but what can you expect when the whole community is prejudiced against you?" The news photographers ask him to pose behind the bars of the receiving cell. "Please don't take my picture here, fellows," he pleads, retreating into a corner. "Think of my family."

His temper erupts again when, on the way to a fourth-floor cell, he hears a camera click. He spins around, grabs a tin bucket, and lunges at the offender, howling, "I'll knock your block off I"

The jail guards subdue him and rush him along to his cell, the reporters all following. As the turnkey opens the cell door, Capone finds two other occupants sitting on their cots. One is a Negro who, he learns shortly, has violated parole; the other, a skid-row bum unable to pay a $100 fine for disorderly conduct. Capone's sense of gesture reasserts itself. After questioning the bum, who is too awed by the legendary presence to utter a word in reply, he turns to the reporters. "I'm going to help this guy if I can," he announces, peeling off a $100 bill from the roll in his pocket and handing it to him.

The reporters leave. The guards take Capone to the jail hospital for the routine shower and medical examination, a humiliation that considerably deflates him.

But this was still Chicago, and to some of its officials Capone was still the "Big Fellow," capable of repaying favors with handsome rewards, and for a while they enabled him to run his organization from jail. Warden David Moneypenny moved him to a one-man cell on the fifth floor with a private shower. He let him make phone calls and send telegrams. In gratitude, when the warden had to go to Springfield, Capone arranged for him to borrow one of his chauffeurdriven Cadillacs. Capone's old political cronies aided him further by obtaining passes to visit him, then turning them over to members of his gang whom he wished to talk to, such as the new Public Enemy No. 1, Joe Fusco, Murray Humphreys, Johnny Torrio, Red Barker and Jake Guzik. Torrio raised the cash Capone needed for his lawyers' fees and other expenses. The prisoner dared not draw on the secret repositories of his own money lest Internal Revenue discover them and impound everything.

The most consequential gangsters to visit Capone during his months in the county jail were the New Yorkers Lucky Luciano and Dutch Schultz. Torrio brought them at Capone's insistence. The Dutchman had been challenging Luciano's claims to certain territorial monopolies, thereby endangering the general peace that had prevailed since the massacre of the Mustache Petes. Capone cast him self as arbitrator. He wanted the Italian and the Jew to reconcile their differences and work in amity with other gang leaders to revitalize the national organization, in which he himself expected one day to play a commanding role. For this conference Warden Moneypenny permitted the use of the death chamber, and it amused Capone to preside, sitting in the electric chair.

But the outcome was not satisfactory. The Dutchman infuriated Capone by his sweeping demands. He behaved as though the entire New York territory rightfully belonged to him. He clearly preferred his individual independence to any alliances-a Mustache Pete at heart, after all. "If I'd had him outside," Capone said years later, "I'd have shoved a gun against his guts." The conference broke up acrimoniously with nothing settled.

What troubled Capone even more was that Torrio, unaccountably, appeared to favor Schultz. Before his old mentor returned to New York, he conjured him to have nothing to do with the Dutchman. Torrio was noncommittal.

In December anonymous telegrams to the Department of justice, describing Capone's privileged life in jail, put an end to it. After an investigation, U.S. Marshal Laubenheimer ordered Moneypenny to ban all visitors except the prisoner's mother, wife, son and lawyers. Capone was transferred to the hospital ward with a detail of deputy marshals assigned to twenty-four-hour guard duty. "I didn't want him to mingle with the other prisoners," said Moneypenny by way of explaining why he had maintained Capone in comfortable privacy. "I was afraid he'd be a bad influence on them."

On February 27 Capone was playing cards with two fellow inmates of the hospital ward, when a deputy warden called him to the door to tell him that the District Court of Appeals had rejected his appeal. He shrugged, rejoined his companions, and finished the game.

Three days later there occurred one of the most atrocious crimes of the century. To Capone, it suggested an opportunity to regain his freedom.