Scarface and the Untouchable

by Max Allan Collins

  Hoover had always believed “the very essence of freedom is obedience to law; that liberty itself has but one foundation, and that is in the law.” By this logic, Capone and his kind posed a direct threat to the American way of life. So did breadlines and the shantytowns, of course, but Hoover wasn’t about to use his power to feed the hungry. He would, however, call up every legal means at his disposal to crack down on the country’s most notorious ganglord. And he would do it to send a message—law still reigned supreme in the United States.

  One day that spring, not long after his meeting with Loesch, the president brought a new issue to the Hoover-ball field. Every morning came a constant refrain, repeated until the members of his Medicine Ball Cabinet came to dread it: “Have you got Capone yet?”

  Capone with Capt. John Stege, March 21, 1930.

  (Author’s Collection)

  Fifteen

  December 1929–April 1930

  Clerking in the library at Eastern State Penitentiary, Al Capone made a model prisoner. He stayed popular with his fellow cons, buying Christmas baskets for their families and supporting the arts and crafts program—sending $1,000 worth of fancy boxes, cigarette cases, wooden ships, and carved figurines as Christmas gifts to Outfit soldiers and friends. He saved one mother and her eight children from eviction by sending $200. Another woman accepted Capone’s money to pay her hospital bills, but politely declined his offer of a job for her husband.

  “I cannot estimate the money he has given away,” said the prison board doctor who took out Al’s tonsils. “Of course, we cannot inquire where he gets it.”

  Capone found a kind of freedom in custody, for once living without fear of “the lights going out.” As one reporter put it, “He had peace of mind. He could sleep nights.”

  Reminded he had five bucks and a new suit coming on leaving prison, Capone said with a laugh he had ten new suits already. “Each one cost more than $100,” he told a Herald and Examiner reporter, “and I don’t owe any tailor bills.”

  Al had hoped to be out sooner, but wound up serving ten months with two months off for good behavior, finally set to leave on March 17. With hundreds of gawkers and reporters amassing outside the prison gate, Warden Herbert Smith was not about to let his model prisoner’s ten uneventful months conclude as a press circus. A Philadelphia paper had made a headline story out of triggermen supposedly waiting to rub out the notorious ex-con—a high-profile murder could be terribly embarrassing to a warden.

  So, on March 16, Capone and Frankie Rio were driven past the throngs in an unmarked car to another, newer facility, where the next day they were secretly released. Crowds milling overnight at Eastern State pen were outraged when they heard, accusing the warden of a payoff.

  “You get the hell out of here,” the warden told them, “and stay out.”

  Among those incensed was reporter Jake Lingle, a legman for the Chicago Tribune. Lingle had a singular, scoop-making relationship with both the Outfit and police, and his paper expected him to keep track of his friend, Capone. Yet the gangster left him holding the bag—literally, as Lingle waited for hours outside the prison with only his suitcase for company.

  Back in Chicago, a miffed Lingle called Ralph Capone, who swore not to know Al’s whereabouts. Really, Al was down the block in Cicero, at the Western Hotel—the renamed Hawthorne—on a bender, celebrating his release. Eliot Ness recalled his wiretap picking up Capone gunmen begging Ralph to come over and deal with his out-of-control brother.

  Once sober, Capone set up a meeting with Captain John Stege of the Detective Bureau. Soon smiling businessman Al was wading with his counsel through sightseers and press in the headquarters lobby at Eleventh and State.

  A reporter hurled a question on a new subject: “Did you pay your income tax this year? . . . You got out on March 17, two days after the last day to file your tax statement.”

  Capone’s smile seemed to say he had.

  Stege greeted the gangster by ordering him taken under police escort to the Federal Building. There, prosecutor George E. Q. Johnson said he wasn’t yet prepared to take Capone into custody. Seemed State’s Attorney Swanson was not in, nor was his assistant and chief investigator, Pat Roche.

  Hauled back to the Detective Bureau, Capone was questioned without press present. An account of the questions and answers was later provided by Stege and Assistant State’s Attorney Harry Ditchburne.

  Ditchburne asked Capone about the murders of those “seven Moran fellows” on Valentine’s Day.

  “I was in Florida then,” Capone said.

  “Yes,” Stege said, “and you were in Florida, too, when Frank Yale was murdered in New York.”

  Capone said nothing.

  After Ditchburne asked him again about both the massacre and the Yale murder, Capone replied, “I’m not as bad as I’m painted. . . . I get blamed for everything that goes on here, but I had nothing to do with any of the things you talk about.”

  Ditchburne said Capone’s name was “synonymous with a large gang,” assumed to be behind the murders in question.

  Capone said he wasn’t responsible for what others did.

  “We have to protect the public,” the assistant state’s attorney said, “and such fellows as you must go. There used to be a time when we wouldn’t have a hundred murders in ten years, but since you gangsters have been at war, we have had three hundred murders a year.”

  Stege put in: “That’s why we are going to drive you out of town.”

  “But you haven’t any right to arrest him,” Capone’s attorney objected, “unless you have evidence of some crime against him. You, Mr. Ditchburne, as a lawyer, know the police can’t do that.”

  Ditchburne said, “I’m not interested in protecting Capone. If Capone feels that he is being arrested wrongfully he has his remedy. He can sue for false arrest.”

  Stege told Capone and his lawyer to go ahead and sue him—other gangsters had tried that and failed.

  “I don’t want to sue anybody,” Capone insisted. “All I want is not to be arrested if I come downtown.”

  “You’re out of luck,” Stege replied. “Your day is done. How soon are you going to get out of town?”

  Capone said he wanted to go to Florida sometime next week. “I don’t know when I have to go to the federal court for trial on the contempt case.”

  Stege said, “I’ve given you notice now. You can go because no one wants to put a complaint against you today. But next time, you go into the lockup. . . . Be on your way.”

  Capone’s attorney said, “Lenin and Trotsky and others rebelled against that kind of treatment.”

  Stege said, “I hope Capone goes to Russia.”

  But instead Capone went to his Lexington suite, to once again sit behind the massive mahogany desk with George Washington, Big Bill Thompson, and Abe Lincoln staring down approvingly. There he met with the Tribune’s Genevieve Forbes Herrick.

  He told her he’d been imprisoned in “the City of Brotherly Love” not for carrying a gun, but because his name was Capone. His celebrity had cost him dearly. While he was inside, the Supreme Court ignored his writ of relief—would they have done that if he was “John Smith from Oshkosh”?

  Then he pressed a buzzer and a young gent came in. “Please ask my wife and sister to come here,” Capone told him.

  Soon two women came in—willowy Mae Capone, pudgy Mafalda. Introductions were made, pleasantries exchanged, before the two women withdrew in “swirls of blue chiffon.”

  “Did you notice my wife’s hair?” Capone asked the reporter, who said she had, calling it “lustrous and fluffy.”

  “No,” Capone said. “I mean the streak of gray. She’s only twenty-eight, and she’s got gray hair, just worrying over things here in Chicago.”

  Mae was a month shy of thirty-three.

  “Say, I’m only thirty-one,” Capone went on, “and I’ve been blamed for crimes that happened as far back as the Chicago fire.”

  He complained of the “bum rap” blamin
g him for the Yale murder—he’d been in his attorney’s office at the time, “an iron-clad alibi.” All he wanted to do was mind his own business, wind up his affairs in Chicago, and leave for his home in Miami.

  When the reporter suggested Miami didn’t seem particularly anxious to have him back, Capone laughed. “There’s been a change of administrations since I was there last,” he said. “The brother of one of the officials owns a paper there that’s losing a thousand dollars a day. Naturally, they got to make news. . . . They got to sell papers.”

  As soon as Capone left the Eastern State pen, the Hoover administration set out to put him back behind bars. On March 18, G. Aaron Youngquist, the mustachioed Swede who’d replaced Mabel Walker Willebrandt as assistant attorney general, began making noise about getting Capone indicted. First, he called the commissioner of Prohibition, who reported their agents had yet to find any evidence linking Capone to the liquor racket. Then he phoned George Johnson, who said beyond the contempt-of-court case, his office had yet to make any inroads.

  “The difficulty seems to lie in the fact that Capone keeps himself two or three or four times removed from the actual operations,” Youngquist observed. “In that situation it is almost impossible to procure evidence unless his henchmen will talk—and they won’t.”

  While Youngquist made his calls, Assistant Secretary of the Treasury Walter Hope ordered a complete audit of Capone’s tax history. The commissioner of Internal Revenue said Capone didn’t have much to audit—he never filed a return—and while the Intelligence Unit had investigated him a year and a half ago, they’d found nothing to use in court. Much progress had been made toward jailing Ralph Capone (about to go on trial for tax evasion), Frank Nitto (in hiding from similar charges), and Jack Guzik (soon to face his own indictment); but Big Al remained out of reach.

  That same day, the order “to proceed vigorously with the investigation of Al Capone” arrived at the office of Arthur P. Madden, special agent in charge of the Intelligence Unit in Chicago. Madden, who had long hoped to build a tax evasion case against Capone, met with Johnson and assistant prosecutor Dwight H. Green to draw up a plan of action. Madden knew the commissioner of Internal Revenue and the attorney general were interested in the Capone case. And word was the White House had “a desire to see it brought to an early conclusion.”

  But Madden also knew they couldn’t wrap this case up quickly. Capone, he told a colleague, had “prepared himself for almost every contingency.”

  Nor could they expect any of Capone’s partners to turn state’s evidence. Ralph would never betray his brother, and Nitto, as Madden observed, “is the type of individual who would submit to a sentence of ten years in the penitentiary before he would inform on any of his associates.”

  To build a case, Madden needed a paper trail. So far, his men hadn’t found one, with little hope they ever would.

  From the earliest days of the income tax, Treasury had made a policy of not prosecuting evaders who admitted their mistakes and agreed to pay up. Elmer Irey himself had started this practice, believing “Treasury’s prime function is to collect money for Uncle Sam, not to catch crooks.” If Capone moved to settle, precedent said the case should stay out of court.

  But, as Irey freely admitted, this was “custom, not law.” Nothing would prevent the feds from prosecuting Capone if he admitted, in a settlement offer, he hadn’t paid his taxes.

  Capone seemed willing to take that chance. The indictments against Ralph, Nitto, and other gangsters had left him deeply concerned and desperate to settle. So he tried to do what he always did—smooth problems over with money—as if the government were just waiting for a payoff, like everybody else.

  While in prison, Capone retained the services of Johnny Torrio’s tax lawyer, Lawrence P. Mattingly. Soon after Capone’s release, Mattingly reached out to the Intelligence Unit, hinting his client would happily pay any tax debt if the government promised not to prosecute.

  Once again, Capone was demanding the government treat him like just another businessman. Internal Revenue had settled with scores of other tax cheats. Why not him?

  Of course the feds had no intention of settling; they wanted Capone in jail. And now they had him in a bind—he could decide not to settle, and risk investigators finding evidence of his income. Or he could keep trying to cut a deal.

  The only way Mattingly could dispose of the case was to file returns. But in doing so, he would be furnishing evidence the government could use in prosecuting Capone for delinquency.

  By holding out the promise of clemency, the tax men were luring Capone right into a prison cell.

  Capone met with the feds in Chicago on April 17.

  Before the stenographer began taking notes, C. W. Herrick, head of the Chicago Internal Revenue office, advised Capone “any statement you make here will naturally be the subject of such investigation and verification as we can make; that is, in the nature of income or anything of that sort.”

  Herrick wrapped up with, “And I think it is only fair to you to say that any statements which are made here, which could be used against you, would probably be used. I want you to know your rights.”

  At that moment Capone and Mattingly should have found the door. Mattingly did say he wouldn’t allow Capone to testify in a way that might imply criminal activity. But after Herrick’s statement, anything spoken of substance would indeed contribute to the ongoing investigation.

  Still, Capone gave little away, frequently deferring to his attorney.

  Herrick asked, “How long, Mr. Capone, have you enjoyed a large income?”

  Capone said, “I never had much of an income, a large income.”

  “I will state it a little differently—an income that might be taxable?”

  “I would rather let my lawyer answer that question.”

  Capone did admit to contributing some currency when Mae bought the Florida place, but said he used only cash day to day, with no checking account, no business, no property. This was essentially an admission of income during the time in question.

  Once Capone and the government steno had left the room, Mattingly told the tax men, “Mr. Capone owes some tax, and Mr. Capone wants to pay it.”

  This off-the-record appeal only offered further proof of his client’s guilt—dealing openly with the feds just dug Capone in deeper.

  The attorney suggested Uncle Sam act promptly, because right now Mr. Capone was in a position to pay. Of course, the government had an entirely different idea of how he might pay.

  On March 22, film star Adolphe Menjou stopped briefly in Chicago on his way from France to Los Angeles. With only a few hours to spend in town, Menjou had one item on his itinerary.

  “Where can I find Al Capone?” he asked.

  The actor might have been directed to one of the tour buses taking sightseers past Capone’s old haunts in Cicero.

  Two days later, paving the way for Gandhi and Stalin, Capone made the cover of Time magazine, the first American mobster to do so. The honor was somewhat lessened by the caption inserting “Scarface” between Alphonse and Capone.

  “No desperado of the old school is ‘Scarface Al,’ plundering or murdering for the savage joy of crime,” Time reported. “He is, in his own phrase, ‘a business man’ who wears clean linen, rides in a Lincoln car, leaves acts of violence to his hirelings. He has an eleven-year-old son noted for his gentlemanly manners.” Time balanced Capone’s domesticity with his career, minus the carnage. Al was credited with forging peace at Atlantic City, and the article closed with an allusion to his Florida problems.

  On March 19, the governor of that state, Doyle E. Carlton, banished Capone. Police departments and sheriff’s offices got the order, some by telegram: “Arrest [Capone] promptly if he comes your way and escort him to State borders with instructions not to return.”

  “And all I’ve ever done in Miami,” Capone once said, “was to spend my money there.”

  He also turned his Palm Island manse into an Outfit clubhou
se with the welcome mat out for crooks, making him unpopular with certain neighbors. The more proper sector of society did not appreciate Capone’s men, their wild parties, wild women, and fishing expeditions where rods replaced rod-and-reels. Even so, the outgoing Capone mixed well with elements of the Miami social set—the slick hustlers and smiling grifters who’d always been part of the city’s rise from the swamps. And local businesses—especially casinos—had no problem in these Depression times with a high roller like Capone.

  As the Miami Daily News put it, “Our people have favored a liberal policy for winter months,” tourists enjoying the city’s wide-open gambling and illegal liquor.

  But the pressure came less from blue noses and more from the corrupt likes of political fixers and newspaper publishers who preferred local sellers of sin to outsiders like the Italian Capone. Fear that Chicago gangsters would take over was understandable if largely unfounded—Capone’s investments in Miami vice were minor, including interests in local speakeasies, an Everglades casino, and the Miami Beach Kennel Club.

  The remedy to this paranoia was a campaign encouraging Capone to leave Florida. So the day after the governor’s wire to the state’s sheriffs, a raid seemed in order.

  The sheriff, several of his deputies, and the county prosecutor himself all came loaded for bear, but no one was home except the caretaker. Some whiskey, wine, and champagne bottles clearly intended for home use were seized; five people staying at the estate were off swimming. The returning bathers were arrested, including Capone brothers Ralph and Albert, and Jack McGurn, no machine gun in sight. Charges were later dismissed, though a fine was paid on the liquor.