But Nitto was in for a shock.
“There is nothing in the file from the District Attorney at all that I can find,” the parole official said.
“Well,” Nitto replied, “I am just stating what they said.”
“I wanted to let you understand if there was an understanding like that, there is no evidence of its having existed so far as the court record is concerned.”
“I can’t understand that,” Nitto said. “It was promised to me.”
The parole official advised him to consult his attorney.
“I would like to get a chance to start all over again,” Nitto said, “and I don’t want to go back to Chicago because there is nothing there for me. . . . I want to start over again and keep away from past associates and go straight.”
But no letter from Johnson had come, and no record backed up the prisoner’s story. Without the promised report, the official had no reason to approve Nitto’s release.
“Defendant hasn’t a bad court record and has maintained a good institutional record,” he said, but the need to set an example to others who might defraud the government was important. The application was denied.
Because George Johnson hadn’t kept up his end of the bargain, Frank Nitto wouldn’t be going free anytime soon.
* * *
In May 1931, Fred Girton, editor of a Miami nightlife paper, visited Capone’s Palm Island estate, keen to satisfy the curiosity of two pretty young girls in his company. A Capone pal since 1928, Girton—handsome, oval-faced, with swept-back widow’s-peaked hair—had accompanied Al on the Bahamian boat trip that became an issue in the contempt-of-court trial. Now he used that friendship to get his female companions past the ten-foot concrete fence, recording his impressions for what would become a Startling Detective Adventures magazine article.
Capone’s young brother Mimi answers the bell. Al’s playing pinochle with the boys. Come on in!
Moving past a gleaming limousine, tropical plants on either side, Girton and the girls cross a porte cochere, past a growling police dog. Gladder to see them is young Sonny, who brags of a fish he’s just nearly caught down at the pier.
Inside, they are greeted with smiles by Capone’s mother and sister, and Al’s wife, Mae, who usher them to the sun porch, where Capone is playing cards. Their host invites them to sit and have a drink.
Capone looks heavier—270 pounds, Girton estimates—but is his usual jovial self. He ends the card game, reminding his opponent, “You owe me twenty smackers for four games.”
After introductions and small talk, Girton asks Capone how everything is going.
“Ah, not so good,” Capone replies. “But they’ll get better. We should be having a good season right now in Chicago, but there’s so many politicians looking for something, that everything’s gone wrong. But it’ll come out all right.”
A bunch of people, including Walter Winchell and Damon Runyon, are coming for dinner, and Al wants Girton and the girls to join the party.
“Haven’t you a home in Chicago, Mr. Capone?” one girl asks.
“Yes, I have one there.”
“Is it furnished as nicely as this one?”
Mae speaks up: “How does he know? He has only been in it once in three years.” Her eyes go to her husband. “When are you coming up to see it again?”
“Where is it?” Capone asks with a grin.
Behind this gentle ribbing, Girton senses “a sort of sorrow permeating the Capone household,” an attitude “of silent rebellion against what they claim is unwarranted persecution.”
Under the watchful eyes of bodyguards, Capone walks his guests to the pool—“a sparkling affair of tile and glass”—to take in the new diving board off the bathhouse’s second floor.
“My kid goes in every day,” Al tells them. “But he can’t get his head wet on account of some trouble he’s had with his ears. That fat youngster over there is my brother Ralph’s son. Isn’t he a husky? Look, I’ve got this bathhouse fitted with showers on both sides. If you want to go swimming I’ve got plenty of suits.”
A girl on Girton’s arm points out a sleek yacht. Their host says they could go on board for fishing, if they like. Mae won’t join them, he says, because she gets seasick.
Back in the house, Al takes a call from Chicago while the guests ooh and ahh over various treasures—a formidable carved mahogany table, a gold tableware set, gilt-edged china, goblets and glassware, “linens that the fingers of some French woman of Alsace must have spent many weeks in constructing.”
Girton’s girls are having a good time, no longer apprehensive about entering Capone’s world, where they’d expected “to view a wild boogey man . . . who would carry one off on a mysterious ride from which there was no return.”
“He isn’t as bad as I thought he would be,” one girl whispers, almost disappointed. “He acts just like a big kid.”
“Stick around and make yourselves at home,” Capone tells his guests. “I’m going up and get ready for dinner. Anything you want, just ask for it.”
He crosses to the stairs quicker than a much lighter man.
“Snorkey’s full of pep today,” Mafalda says, then adds, “He’s that way most of the time he’s in Florida.”
As a small army sets the horseshoe-shaped table—flowers, fancy glasses, golden knives/forks/spoons—Girton’s girls seem to wonder: How much would a hock shop give for that loot?
Capone returns in a doeskin sportcoat, striped trousers, and silk shirt with fiery tie and emerald stickpin, a massive diamond on a massive hand. Guests are arriving and he greets them, a publisher here, an attorney there, here a Winchell, there a Runyon.
As more guests stream in, some arriving by car, others by boat, Capone supervises, moving among his guests to make sure they’re getting what they want, as strangers get to know each other and those making return trips toss wisecracks. The host makes sure “more spaghetti, more squab, more steak, more vegetables,” are served up by a gunman turned waiter.
“Frankie, hurry up, will you,” Capone says genially, “or I’ll cut your throat!”
A guest inquires of his green peppers and broccoli, “What’s this stuff cooked in?”
“Pure imported olive oil,” Capone answers. “You never hear of Italians having stomach trouble, do you? Why? Because they cook their foods in pure olive oil. It’s the fats and lards and grease that cause so much sickness in this country.”
And the macaroni is from Italy, not that lousy American stuff, and be sure to try the Italian peppers—don’t be afraid. Why, their host crunches down two at a clip!
Meanwhile, Mother Capone is eating only the broccoli, while everything stops for Sonny to tell a joke about the reason the chicken crossed the road (a rooster was waiting). And Mae eats in silence, glancing at her guests, perhaps cataloging them, keeping her thoughts to herself.
Now comes coffee, cheese, strawberry shortcake, ice cream. Then cigars and cards for the men, a drawing room for the ladies to “engage in topics that appeal to feminine minds.”
As the guests take their leave, their host says, “Come back any time. Bring some friends. See you tomorrow, okay?”
Girton and the girls thank Mr. Capone for the wonderful dinner. He’s glad they liked it. “Come over any time, and bring some friends.”
As handshakes are exchanged with the host’s kin, Mae is subdued, Al’s mother smiling, Mafalda off somewhere, Sonny offering one more riddle. In the dining room, Capone’s gunman/waiter is counting the gold tableware.
Outside the gate, the girls pause for a last Lot’s wife’s look at the estate. “Gosh,” one says, “I’d hate to be taken for a ride by Al Capone, but I’ll go any time for another one of those meals!”
Girton had paid careful attention to what he and his young companions saw at Palm Island. Shortly after, he gave Frank Wilson of the Intelligence Unit a sworn statement “regarding the lavish mode of living by Al Capone at his Miami Beach home.”
The editor spilled it all—how he
’d been friendly with Capone since 1928, had visited Palm Island maybe thirty times, that meals seated fifteen to twenty, that parties averaged forty to sixty guests, the gold dinner service, the gourmet chef, the Cadillac limo, and more.
Startling Detective hadn’t been the only market for his story.
Capone arriving at the Federal Building to plead guilty, June 16, 1931.
(Cleveland Public Library Photograph Collection)
Twenty-Four
June–July 1931
After months of buildup in the press, George E. Q. Johnson turned his signature legal weapon on Al Capone.
On June 5, 1931, Johnson’s office handed down a sixty-five-page indictment charging Capone with twenty-one counts of income tax evasion from 1925 to 1929. When combined with the earlier, secret indictment covering 1924, Capone faced a total of thirty-two years in prison and as much as $80,000 in fines.
Capone went to the Federal Building to post bond.
“Al was nattily garbed, as usual,” said the Herald and Examiner, “wearing a grey [sic] suit, black shoes, a white shirt, a black tie and new straw hat, but, for the first time in his infrequent appearances in a courtroom, he had lost his smile and affable mood.”
“Frowning, surly, and obviously worried,” Capone ducked reporters’ questions. Would he plead guilty?
“There’s nothing to it,” Capone shot back.
Federal officials were anything but tight-lipped. Unnamed “government men” told the Herald and Examiner they’d compiled an “overwhelming” and “airtight case” that “hits at the very inner circle of the Capone organization.” After A. P. Madden spun the tale of the tax investigation for eager reporters, the New York Times rather generously compared their work to the exploits in “a dime novel.”
George Johnson offered his own words of praise for the agents, but remained measured and reserved, unwilling to get ahead of himself. Like the defense, he assured the press Capone would not and could not seek a plea bargain.
“We don’t expect him to try and plead guilty and secure a lighter sentence,” Johnson said. “We want no compromise with Capone.”
The indictments seemed impressive. They laid out in minute detail just how much the government alleged Capone had taken in—$1,038,654.84 from 1924 to 1929—and how much he owed in back taxes—$215,080.48. They even allowed him $1 in deductions per year, which made the whole business seem that much more official.
But for all this bureaucratic exactitude, the tax men’s charges were little more than educated guesses based largely on the Capone lawyer’s letter seeking a settlement. No one knew whether those figures were accurate, nor had attorney Mattingly claimed as much. And that was the only hard government evidence giving any hint of Capone’s income.
The ganglord and three of his partners each received one-sixth of the Outfit’s profits, Mattingly had written. From witness testimony, the tax men knew Capone’s partners were his brother Ralph, Frank Nitto, and Jack Guzik. Though lacking any of Al’s financial records, the feds had plenty of bank statements and canceled checks from those three.
To compute Capone’s income for a given year, the government added up deposits made by Nitto, Guzik, and Ralph and assigned one-sixth of the total to Capone. This produced convincing-looking but essentially worthless figures—nothing showing any money deposited by Nitto, Guzik, and Ralph winding up in Capone’s pocket.
Nor could the feds be sure the crucial letter could even be used at trial. Mattingly had made the government a confidential, good-faith offer to settle. Under standard rules of evidence, such “bona fide offers to compromise,” made by an attorney on behalf of a client, were not admissible. The judge might well abide by precedent and throw the letter out.
And even if the judge allowed it, the jury might view the letter as an honest attempt to pay up, undermining the government’s central charge that Capone willfully and deliberately avoided paying his taxes—a necessary element for charging him with a felony.
Frank Wilson managed to dig up a few other scraps of evidence, such as wire transfers made to Capone under various names. But most of what he and his agents had related to Capone’s lavish purchases—$2,500 cash up front for thirty custom-made diamond belt buckles, $3,780 for more than twenty tailored suits (each with a specially lined pocket to hold a revolver), and $84 for seven pairs of underwear of “a knitted very fine silk similar to ladies gloves.”
Still, Capone spending money didn’t prove he’d received it from a taxable source. Although such testimony might make for compelling courtroom theater, and enrage a Depression-starved jury, a good lawyer could get it thrown out.
The government’s best piece of hard evidence remained the Hawthorne Smoke Shop ledger; still, nothing in it proved Capone earned any income from the casino. Wilson had spoken with several employees and cobbled together an estimate of Capone’s share of the profits; but their statements had been conflicting and unreliable.
At least one had recanted, in fierce loyalty to the boss, and all were too risky to call at trial.
Uncle Sam would have to settle for calling bookkeeper Leslie Shumway and a few others to say Capone behaved like he owned the place, and even claimed he did. If so, then presumably he made money from it. But that remained an assumption, a leap of faith for a jury.
Even worse, the ledger ended in April 1926, well outside the three-year statute of limitations. Wilson had worked under the assumption that a six-year statute applied to tax evasion, but the higher courts had yet to decide which rule applied. Even if prosecutor Johnson managed to eke out a conviction, Capone’s attorneys could file for an arrest of judgment, putting the gangster’s sentence on hold for a year or two, dashing Johnson’s hopes of jailing Capone before the 1932 campaign and the World’s Fair. And the Supreme Court might very well decide the three-year rule applied, wiping out most of the felony charges against Capone.
The tax case rested on quicksand and Johnson knew it, but had rushed it into court anyway. With the ledger about to expire and the Justice Department breathing down his neck, Johnson had little choice—otherwise, he’d lose his shot at Capone. But with so many holes in his case, he could see little chance of winning a speedy conviction, his best hope the one thing he’d refused to do in public—cut a deal with Capone.
Back in late April or early May, a Capone lawyer met with Johnson, surprising the prosecutor by revealing his client knew of the secret indictment handed down in March. Capone feared what would happen in court, believing press notoriety made a fair trial impossible. If Johnson would recommend “a satisfactory sentence,” Capone would plead guilty.
Johnson brought the offer to Attorney General William Mitchell and his assistant, G. A. Youngquist. They gave him tacit approval to negotiate, but reserved the right to sign off on any plea bargain. Above all, this had to remain secret; the country wouldn’t look kindly on the Justice Department bargaining with a notorious “public enemy.”
For a few weeks, Johnson met repeatedly with Capone’s lawyers, who said Capone would settle for eighteen months behind bars, as had Frank Nitto for his guilty plea. Johnson held firm at two and a half years. The defense came up to two years, and Johnson seemed ready to accept—the tax indictments had yet to come down, and Johnson considered shaving off some of the charges to make it seem as though he’d driven a harder bargain.
The Justice Department, as Youngquist wrote, cared less about the length of Capone’s sentence “than the restoration of public confidence in law enforcement that would follow upon his actually being put behind the prison bars.” Jailing Capone was about making a statement; the appearance mattered more than the legal realities.
But convicting Capone of tax evasion—on a guilty plea, no less—would send a mixed message to the public.
“It is not conducive to American pride,” wrote the Louisville Courier-Journal after Capone’s indictment, “that gangsters, guilty of every abomination from operating a chain of brothels to committing wholesale massacre, should be found guilt
y only of failing to pay taxes on their ill-gotten gains.”
To put the best possible face on the deal, the feds couldn’t just lock Capone up as a tax cheat; they needed something more. And the government still held the power to charge Capone with his signature crime: bootlegging. A Prohibition conviction would keep the president’s promise to back up the Eighteenth Amendment, handing Herbert Hoover a major, and much-needed, symbolic victory.
During a visit to Chicago in May, Youngquist suggested Johnson dredge up an old liquor conspiracy indictment against Capone and roll it into the plea bargain. That might get the defense to agree to the two-and-a-half-year sentence and would certainly please the president.
“If the guilty plea to the liquor conspiracy case can be secured in addition to the plea in the tax case,” Frank Wilson wrote Elmer Irey, “[the president] can tell the world that he has the biggest bootlegger and most notorious gangster in the country in jail. That ought to show the country he is doing his best for law enforcement and perhaps would result in considerable support in 1932,” when Hoover faced reelection.
But Johnson didn’t need the old indictment—he had the work of Eliot Ness and the Untouchables. During their first two raids, the team had seized important records and arrested key figures in the beer business. And pencil detective Lyle Chapman had strung together evidence from every raid on an Outfit-connected brewery since 1924, effectively tying Capone to the racket.
The case remained, at best, a work in progress—more raids would yield more evidence and a fuller picture of the gang’s operations. Johnson already had enough for a sweeping indictment implicating Capone and several of his top aides in a vast, ongoing bootleg conspiracy.
As with the tax charges, the normally snail-paced Johnson would be pushing this case into court before its time. But that didn’t matter, because he never expected to take it to trial anyway—Ness’s work would be another bargaining chip in his negotiations with Capone’s lawyers.
Scarface and the Untouchable Page 38