One week after the tax indictment, the grand jury charged Capone and sixty-eight others with five thousand counts of conspiracy to violate the Volstead Act. Each count represented either 1,500 gallons of beer seized in a brewery or a confiscated truckload of thirty barrels. That amounted to some 7.5 million gallons, with a total street value in excess of $2.7 billion.
Newspapers ate these figures up, running enormous headlines dwarfing those about tax charges.
5,000 CRIMES INDICT CAPONE, screamed the front page of the Herald and Examiner. INDICT CAPONE; 5,000 counts, proclaimed the Tribune. News of the tax indictment had only made it to page four of the New York Times. The Prohibition indictment, on the other hand, landed squarely on page one.
Asked by reporters how he felt about his chances in court, Johnson smiled. “We never indict unless we have a good case,” he said.
“This is the end of Scarface Al.”
The next day, Ness led a squad of federal marshals out to round up all the defendants. Most big shots were expected to turn themselves in quietly, but asking around about some lesser-known names, the investigators got only belly laughs in response—at least ten named in the indictment did not exist, their names springing from the fertile imaginations of gangsters forced to testify before the grand jury. Federal officials threatened perjury indictments against the “belligerent Capone henchmen,” as the Daily Times described them, who had pulled the stunt.
“At any rate,” wrote the Times, “the false names do not affect the validity of the indictment.”
Congratulatory messages flooded Johnson’s office. But the prosecutor insisted the real credit belonged to the agents, heaping praise on Ness’s special squad.
“They worked at the risk of death,” wrote the Tribune, “and resisted the temptation of bribes several times as high as their salaries for a year, Mr. Johnson said.”
Johnson also revealed the group’s nickname, which first appeared in print in that evening’s Herald and Examiner. An Associated Press writer included the name in his story, and the following morning Ness and his “Untouchables” made coast-to-coast headlines.
In praising Ness’s team, Johnson went far above and beyond the pat on the back he’d given the tax men—playing up the peril of the Untouchables’ work, stressing the huge payoffs they’d refused, and describing in detail the threats and intimidation they’d ignored. He led reporters to believe this was more than a ragtag band of misfits.
“The average age of these agents is 30 years,” said the Tribune, “and the average salary $2,800. All are college graduates, and they are the picked men in the prohibition service from all parts of the country.”
Really, their average age was closer to thirty-five, and apart from Ness, only Chapman had graduated from a four-year university. Claiming otherwise painted these men as something they weren’t—clean-cut, fresh-faced feds, models of what the world would soon come to know as “G-men.”
Johnson put the squad’s best face forward, the one belonging to the college-educated, twenty-something Ness.
“Seven of the eight . . . remain anonymous for various reasons,” reported the AP.
Only Ness’s name made the papers. His photo, taken from his government credentials, went out on the AP wire, running everywhere from Washington, D.C., to Enid, Oklahoma.
Exploits having little to do with the current Capone case—such as Ness cheating death at the hands of a stiletto-wielding henchman in Chicago Heights—made it into the articles, helping make the plea deal seem a hard-won victory. Capone’s story already had an engaging villain—Johnson merely supplied a hero.
And Ness willingly filled that role. The same day the story hit the papers in Chicago, Ness sat down for an interview with twenty-two-year-old Priscilla Higinbotham of the Herald and Examiner. Higinbotham moved in Ness’s sphere, having studied under Goddard at the Northwestern crime lab. But she treated him less like a lawman than a celebrity—a charming, well-educated, engaging personality.
“Ness is only 28, but he has formed some very definite views,” Higinbotham wrote. “While feeling that the Prohibition amendment, as a law, should be enforced, he has a greater interest, apparently, in wiping out the evils that the law has brought about.”
She closed by noting Ness cut the interview short to go play a few rounds of tennis—“just a ‘workout,’ necessary to prepare him for more hours and hours of intensive work to ensure Alphonse Capone’s ultimate sojourn behind the bars.”
Yet Ness remained a bit player in crafting his own legend. From the moment it hit the papers, his story had a life of its own, spinning well outside anyone’s control. Far-flung editorial boards, who knew next to nothing about Ness, sang his praises in lofty terms.
“No soldier on the battlefield ever performed more heroic work than has Eliot Ness performed,” said the Hollywood Daily Citizen on June 17. “He should be honored as are the heroes of the battlefield honored.”
Individual citizens sent Ness a string of fan letters.
“God bless you and the others for the good work you have done,” wrote one Californian to Ness. “I knew that some day some one would appear and make an end of Al’s terrible situation.”
In a private letter to Ness, the editor of a Wisconsin newspaper offered his own endorsement.
“I am a 100-per cent wet, but I honor you for your bravery,” he wrote. “The sooner you can put these boot-legger-drys where they can’t vote for prohibition, the quicker we can get a repeal of the 18th amendment. I’m for you.”
Thrust from obscurity into the limelight, Ness arrived at just the right time to become a cultural hero. Thanks to the onset of the Depression, the American infatuation with racketeers had turned to loathing.
“A well fed, busy, money-making America could forget a massacre and continue to wink at gangsters,” Liberty magazine said that fall. “The glamour has been stripped from the gangsters. Even the most stupid of us see them now as they are, yellow louts, red-handed plunderers. . . . Hunger has made us see the truth.”
Americans hungered for heroes, too, now that the clay-foot idols of the Roaring Twenties had begun to crumble. After overdosing on individualism, many warmed to the idea of a man who placed the country’s needs before his own.
“One of the things that brought malignant power to Capone was a passion for owning things,” said the Birmingham Age-Herald. “If one may judge the mind and spirit of young Ness by his first public service, his passion lies in making a better social state—a passion for clean and fine things, something quite apart from the acquisitive passion.”
Capone and his breed represented the heartless, take-no-prisoners capitalism that drove the country into Depression. The story of the Untouchables offered a heroic alternative, a necessary corrective to a decadent decade.
Ness, of course, was far from the only figure embodying these virtues—George Johnson, Frank Wilson, and others who worked on the Capone case could lay similar claims. But none shared Ness’s youth, good looks, or boyish charm, and none had taken the fight to Capone as directly as the Untouchables. In a nation reared on tales of frontier lawmen, Ness couldn’t help but stand out. He became the symbol of everything the Justice Department hoped to prove with Capone’s conviction—that law and order still reigned in the United States.
“This is an achievement that will go far towards strengthening the faith of our people in their government,” an Oklahoma pastor wrote Ness. “We had begun to wonder whether criminals and their purchased lawyers were not our real rulers. The success of the government through the diligence and courage of men like yourself renews the courage of all of us.”
Another Oklahoman drew inspiration from Ness’s courage. Chester Gould had moved to Chicago in 1921, hoping to ply his trade as a cartoonist. But after ten years of turning out such strips as Fillum Fables, The Radio Catts, and The Girl Friends, a successful nationally syndicated strip remained beyond his grasp.
He began badgering Captain John Medill Patterson of the Tribune Syn
dicate with one idea after another. Patterson rejected them all.
“I’m capable and determined,” Gould wrote Patterson in March 1930, “give me a chance. Won’t you believe me when I say I know my stuff and can deliver the goods?”
Gould liked to think of himself as a newspaperman, with the front page as his competition, and he ripped his next idea right from Chicago’s headlines. The big gangsters, who had been given a free pass by corrupt local cops, were being hounded now by a new breed of federal investigators.
In the summer of 1931, he began to envision a strip about a modern Sherlock Holmes. Instead of a deerstalker, this detective would wear a fedora; instead of an Inverness cape, a camel’s-hair topcoat. Newspaper stories about Ness and the Untouchables gave Gould real-life models, crystalizing the character in his mind—a courageous, scientific crime fighter battling a modern Moriarty.
Gould worked up a week’s worth of strips pitting a cigar-chomping, Capone-modeled gangster against a hook-nosed, square-jawed detective—Plainclothes Tracy. Grim and violent, with sneering, brutal villains speaking the argot of Chicago’s streets, Tracy was like nothing that had ever appeared in America’s funny pages, which was precisely what piqued Captain Patterson’s interest.
YOUR PLAINCLOTHES TRACY HAS POSSIBILITIES, he wired Gould. WOULD LIKE TO SEE YOU WHEN I GO TO CHICAGO NEXT. The telegram left Gould trembling and dizzy. When Gould showed up for his meeting with Patterson, the captain began pacing the room.
“This name is too long,” he said. “Charlie, Harry, Harry Tracy, Buck Tracy, Dick Tracy. Let’s call this man Dick Tracy. They call cops Dicks.”
“I was a little jealous that I didn’t think of it myself,” Gould recalled. “It was a brilliant idea. Dick Tracy. Tracy was a play on tracing, in my book.”
The feature debuted the following October. Like the story of the Untouchables from which it drew, Dick Tracy offered everything Americans wanted in a lawman—a detective who shot first, asked questions later, and never let a bad guy get off with a plea bargain.
Shortly after the return of the Prohibition indictment, George Johnson met in private with Judge Wilkerson. Johnson had every reason to see the judge as an ally, considering the man’s history with the Capones. But Wilkerson’s fierce determination to go his own way made him a wild card.
The two had discussed the plea bargain before, with Johnson outlining the flaws in the tax case. Wilkerson had remained noncommittal, saying only the matter merited consideration, reserving his final decision.
Now, after reminding the judge of the risks in bringing Capone to trial, Johnson said the Justice Department and the defendant had come to an arrangement. As before, Wilkerson was careful not to promise to abide by the deal, but he didn’t reject it outright, which was enough for the prosecutor. Johnson went back to Capone’s attorneys and told them Wilkerson had approved the bargain.
To close the deal, Johnson compromised even further. The attorney general had reluctantly signed off on concurrent sentences of two years for bootlegging and two and a half for tax evasion, with the understanding that Capone would serve his full time. But Johnson agreed to only eighteen months on the Prohibition charges, and left Capone’s lawyers with the option of appealing the tax conviction on statute-of-limitations grounds.
Capone surely viewed this as a victory. Prison would give him a respite from constant raids and other federal harassment—he’d walk out in 1934 still in his prime, his slate essentially wiped clean. The Depression might even be over by then. People would have the money to start drinking and gambling again; Capone could return to an organization healthier and more profitable than before.
If he fought the charges at trial and took his case to the Supreme Court, Capone might end up going to jail just as prosperity began to kick in. Better to take his lumps now.
On Tuesday, June 16, a few minutes before 2:00 P.M., Capone arrived at the Federal Building with bodyguard Phil D’Andrea. Onlookers thronged the streets, many more packing the halls inside, desperate to catch a glimpse of the great gangster. When Capone stepped from his car, ten police detectives surrounded him and cleared a path to Judge Wilkerson’s crowded courtroom. A sea of spectators tried to force their way in, but guards kept doors sealed tight.
Capone took a seat alongside his attorneys, his camel’s-hair suit—a tasteless bright yellow—offering a stark contrast to their sober attire. Journalists crowded in, bombarding him with questions. The Evening American’s correspondent made herself heard over the ruckus, asking about Capone’s sunshine suit.
“Yeah, it is loud, isn’t it?” Al said. “Well, I got to do something to give the crowds their thrill.”
Capone crossed his legs, showing off red-white-and-blue silk socks. Everything about the defendant, from his eye-watering outfit to his self-satisfied smile, telegraphed his delight at getting away with murder.
Elmer Irey had come from Washington to witness the Intelligence Unit’s signal victory. With him were the agents who’d dogged Capone for the past three years: Frank Wilson, A. P. Madden, Nels Tessem, and Clarence Converse.
Wilson studied the man who’d outfoxed him time and again.
“There’s a bad streak in him,” Wilson said, “but I can’t help thinking that he’s what could have been a good man gone to waste. . . . The abilities he undoubtedly has might have been turned into quite different channels.”
Eliot Ness had also come to see Capone plead guilty. Perhaps that was when, according to one report, Al asked his lawyer to point out that meddlesome Prohibition agent. Ness, who had never laid eyes on Capone short of a newsreel, kept his impressions of the gangster largely to himself.
But the defendant’s cool confidence didn’t sit well with Eliot, whose calm demeanor masked boiling frustration at Capone’s having managed to cheat the law.
When Wilkerson walked in, the spectators got to their feet like sports fans for the national anthem. Then they fell back in their seats, ready for the show. Capone, his attorneys, and the prosecution team approached the bench.
Standing alongside George Johnson were his two assistant prosecutors: Dwight H. Green, in charge of the tax case, and Victor E. LaRue, handling the Prohibition indictment. Green faced the defendant.
“Alphonse Capone,” he declared, “in indictment No. 22852 you are charged with attempting to evade and defeat your individual income taxes for the year 1924. . . . How do you plead, guilty or not guilty?”
“I plead guilty,” Capone said softly.
“In indictment No. 23232,” Green said, “you are charged with attempting to evade and defeat your individual income taxes for the years 1925, 1926, 1927, 1928 and 1929, and with willful failure to file . . . individual income tax return[s] for 1928 and 1929. . . . How do you plead, guilty or not guilty?”
Capone murmured, “I plead guilty.”
Now LaRue stepped forward. “And in indictment No. 23256,” he said, “you are charged with conspiracy to violate the National Prohibition Act—how do you plead, guilty or not guilty?”
“I plead guilty.”
With that, it was over, and the court moved on to another case.
Capone said he “hoped everybody was satisfied,” sighed, and slipped out, a phalanx of police hurrying him into a freight elevator and away from the crowd. In the airy rotunda, gawkers lined the balconies like gargoyles, waiting for Al, already gone out a side door.
Asked for a comment by the Tribune, Johnson offered only a weary smile. He told the Herald and Examiner: “I’ll be able to sleep easy for the first time in a long while tonight—I’ll be able to relish a good meal, too.”
The long-suffering Prohibition Bureau greeted the news with elation. “Personally,” Dwight Avis wrote Johnson, “I do not believe that there could be any more distinct accomplishment that would tend to create public confidence in the proper enforcement of the National Prohibition Act.”
The agency’s internal newsletter, the Bureau Bulletin, ran a brief story listing the agents responsible for Capone’s i
ndictment—Ness, Joe Leeson, and Lyle Chapman getting the most credit. The piece also acknowledged the work of Maurice Seager, Warren Stutzman, Paul Robsky, Marty Lahart, Barney Cloonan, Robert Sterling, and Marion King—the first and only time the names of all ten Untouchables would appear together in print during their lifetimes.
The tax men, too, were celebrating. “There seems to be a feeling in Washington, since Al Capone was forced to plead guilty in Chicago,” said the New York Times, “that the Federal Government at last has an effective weapon with which to break the backbone of racketeering in the United States.”
Irey pledged to clean up Manhattan by sending the same agents who had so effectively snared Capone. Meanwhile, Frank Wilson, his work seemingly finished, closed off a new but promising phase of the investigation.
Back in March, he’d sent two undercover agents, Michael Malone and James Sullivan, to investigate Capone’s ties to brothels in Stickney. They’d rented rooms in the Lexington Hotel, posing as gangsters, hobnobbing with Outfit men. But the pair hadn’t penetrated very deeply into the mob before Capone pleaded guilty and their work came to an abrupt end.
The day after Capone gave his pleas, Irey, Wilson, and Johnson went down to Springfield to see Herbert Hoover, in town to rededicate Abraham Lincoln’s newly renovated tomb. Illinois Republicans packed the place; congratulations from officials and citizens alike greeted Johnson everywhere. Reporters hounded the prosecutor, asking if the president planned to congratulate him in person.
No, Hoover hadn’t sent for him, Johnson said. “After all, I’m only the district attorney, and my boss is Attorney General Mitchell.”
Johnson insisted he wasn’t a gubernatorial candidate, adding, “I don’t want to claim too much credit.” He stressed the strength of the indictments, saying he could have won in open court had it been necessary.
“Capone,” Johnson said, “must have been pretty well convinced we had an air-tight case.”
At the ceremony in Oak Ridge Cemetery, the president received an unusually warm greeting, four hundred–some protesters having been nudged out of town before his arrival.
Scarface and the Untouchable Page 39