“There is a method provided for you in such cases,” Wilkerson replied. He meant that Capone and his attorneys could request a change of venue—a strategy they probably should have employed, but nothing indicates they ever tried.
The Justice Department had their own reasons for discontent—Wilkerson’s ruling was a public embarrassment not only for the prosecutor, but his entire agency.
“A letter of praise to Mr. Johnson and his Chicago staff was ready to be sent out by the department,” said the Herald and Examiner, “but Judge Wilkerson’s refusal to fall in with the ‘gentlemen’s agreement’ between officials and the gang leader upset all the neat plans.”
One U.S. senator even proposed a congressional investigation, harshly criticizing the department for contemplating a deal with Capone. By exposing the bargain to the nation, Wilkerson alone in the justice system seemed courageous enough to stand up to Public Enemy Number One.
He’d also set the stage “for a real fight to the finish between disorganized law and organized crime,” as one upstate New York paper put it. “A month ago the impregnable honesty of the half-dozen federal ‘untouchables’ seemed to have the Haughtiest Hoodlum well on the way to presiding behind a new kind of bars. Today the Best-Dressed Gangster bids fair to be, so far as the law is concerned, the most untouchable of them all.”
Although pleased that Judge Wilkerson had thrown out the devil’s bargain, Eliot Ness knew that when it came to bootlegging, Capone could be convicted only on conspiracy charges.
The next day, the Tribune cited unnamed Untouchables—likely including Ness—who explained the difficulty, if not impossibility, of “link[ing] Capone with any substantive offenses, such as manufacture, sale or transportation of beer, within the statute of limitations.”
In early August, Ness and his Untouchables appeared before the grand jury, presenting their evidence in what seemed a vain attempt to secure new charges against Capone.
In the meantime, their most important work remained cutting off the Outfit’s income wherever they could. And summer provided bootleggers with a much-needed cash infusion as roasting Chicagoans sought icy glasses of beer. Taking no joy in denying refreshment to the city’s citizens, Ness and the Untouchables provided heat of their own, hoping to dry up an already weakened criminal organization.
As early as mid-May, Capone’s men were fleecing speakeasy owners by underfilling beer barrels and forcing more product on them than they could use.
“Raids on Capone’s breweries and his gambling dives,” reported the Tribune, “as well as high bonds required of his gangsters in federal Court are reported to have hit [Capone] hard financially, probably accounting for the cheating.”
Federal agents told the New York Times the Outfit was “virtually insolvent” from bailing out its members and replacing seized equipment. When the tax charges first came down, Capone barely had enough cash on hand to make his $50,000 bond.
The Untouchables kept up the pressure. Cruising around the South Side on June 20, two of Ness’s men noticed the driver of an ice truck glancing around furtively, as if to spot a tail. They followed him to a large double garage at 2636 Calumet Avenue and stormed inside.
A trio of startled bootleggers lit out the back way. The agents flagged down a passing police car and leapt onto its running board as it sped after one of the fleeing men. A few warning shots brought the bootlegger skidding to a stop, ready to surrender.
He turned out to be James Calloway, an associate of Bert Delaney, Capone’s brewery location spotter. The other two escaped, but back in the garage the Untouchables found more than 360 barrels of iced beer ready for delivery—some 12,000 gallons all told, worth $20,285. They also discovered another piece of evidence linking Capone to the racket—some barrels had been loaded onto a truck owned by the World Motor Service Company, a Capone front.
Less than a month later, as a thick, oppressive heat wave settled over the city, Ness got a tip liquor was stored in a garage at 3419 North Clark Street. He and the Untouchables quickly raided the place, but found nothing apart from some empty bottles and whiskey wrappers. Wilting from the weather and their failure, they had to admit defeat.
“Well, boys,” Ness said. “It looks like we’re dished again.”
But then one of the Untouchables pulled a handkerchief from his pocket and a half-dollar coin fell out, rolling across the floor and dropping through a metal grating, landing with a soft clink. Ness walked over to the grate, raised it, and looked down into a secret chamber, twelve feet square, packed with more than one hundred cases of fine imported liquor, worth about $15,000.
The Evening American whined, “Prohibition agents, aided by police, today destroyed enough bourbon whisky, which, if mixed into mint juleps, poured into tall, thin frosted glasses and garnished with a sprig of mint—which would . . . Anyway, here’s looking at you.”
Ness still received regular tips from the Kid, his informant inside the Outfit, who said top gangsters met every Monday morning to discuss how to stop the Untouchables. The gang set up a special round-the-clock tip line to monitor the squad’s activities—anyone with news of an impending raid got a $500 reward.
The Kid gave Ness the number, and the squad had it tapped. Looking over the transcripts, Ness could see “the gang was keeping a close check on someone”—right down to when and where he went to lunch, and the shows and sporting events he attended at night . . . reports precisely matching Ness’s social calendar. The Kid, Ness realized, had been alerting the Outfit to his every move.
“This was a danger,” Ness recalled, “and also an opportunity.” The mob “knew I loved to raid and that raids were rarely made without my being present.” Whenever the Untouchables planned a raid, Ness would tell the Kid he was taking the night off to enjoy a show or see a game. Then he’d “turn up seizing a beer truck or a brewery when they least expected it.”
The Outfit paid the Kid well—“his automobiles,” Ness said, “kept getting fancier”—but they weren’t getting what they paid for. Sooner or later, they’d settle up in blood.
Ness called the Kid and reminded him of his emergency fund at the Postal Savings Bank. The time had come to draw down his balance “and take a quick but long trip.” The Kid obliged and disappeared.
Had the undercover Kid achieved the goal of impressing his stripper wife? That remains a mystery.
While the Untouchables dismantled Capone’s empire, the gangster kept working the media. In late August, he agreed to meet with Liberty magazine’s Cornelius Vanderbilt Jr., thirty-three, rich man’s son turned journalist.
Vanderbilt, having heard “strange things were known to happen to the gentlemen entertained by Al Capone,” decided to take precautions. On his way to the 3:00 P.M. meeting, he left a letter for the manager of his hotel, to be opened at 6:30: “If I am not back by the time you read this note, please notify the police.”
At the Lexington, Capone welcomed Vanderbilt as his equal, assuming an almost aristocratic attitude for himself. Sitting behind his desk and constantly relighting his cigar, Capone insisted that the rich must band together in these dark times, or else hand their country over to the Bolsheviks.
“Us fellas has gotta open our pocketbooks,” Capone said, “and keep on keeping them open, if we want any of us to survive. We can’t wait for Congress or Mr. Hoover or anyone else. We must keep tummies filled and bodies warm.”
Capone complained about being blamed for things he hadn’t done and getting no credit for the good he did.
“I guess I’m like you, Mr. Vanderbilt. . . . You’d think I had unlimited power and a swell pocketbook. Well, I guess I got the power all right; but the bank book suffers from these hard times as much as anyone else’s.”
That was perhaps as much from Eliot Ness as the Depression, but Al didn’t get into that.
Capone said he expected the Eighteenth Amendment would soon be repealed. But that didn’t bother him, because he’d branched out—the booze business now made up only about a thir
d of his take. He also believed the dry law’s end would help bring back family values.
“When the Prohibition law is repealed there’ll be less desire for birth control,” he said. “Without birth control, America can become as stalwart as Italy. With an American Mussolini, she could conquer the world.”
The gangster decried the decline of American morals, saying—without apparent irony—that graft and payoffs were “undermining this country.” He had harsh words for “crooked bankers,” using Florida as a case in point.
“Do you think those bankers went to jail? No, sir. They’re among Florida’s most representative citizens. They’re just as bad as the crooked politicians! I ought to know . . . I’ve been feeding and clothing them long enough.”
“You are very frank,” Vanderbilt said.
“Why should I lie?”
As his reference to “an American Mussolini” suggested, Capone’s politics leaned fascist. The way to cure America’s ills, he said, was to “kick out state governments, jail all mayors and have the whole show run by the Federal people.”
“Coming from a man about to encounter the U.S. Collector of Internal Revenue,” Vanderbilt wrote, “it sounded quite courageous. I told him so.”
“Oh, they are only trying to scare me,” Capone said with a yawn. “They know very well there’d be hell in this city if they put me away.”
“Mr. Capone,” Vanderbilt asked, “there is one thing I would like to clear up before I go.”
“What is it?”
“Do you have to kill many people?”
“Well, believe it or not, I personally never killed nor wounded a single person.”
“And your men?”
“They kill only the rats and they do it on their own. I find out about it from the papers.”
Capone closed by once again urging the wealthy to stand strong against the creep of Communism. “I think we both speak the same language,” he told Vanderbilt, “and I think we’re both patriots. We don’t want to see them tear down the foundations of this great land.”
Much of what Capone said seemed plucked from the mouths of the city’s elite, comments traded over cigars and brandy in exclusive social clubs. But was this patrician posture all an act, another attempt at public relations in advance of the trial, or had Capone really come to see himself on a par with men like Vanderbilt and the tycoons who made up the Secret Six?
Gangland observer Edward Dean Sullivan believed the latter. Capone “merely regards himself as any other business executive,” Sullivan wrote, “and keenly resents the efforts to hamper his activities, especially of a social nature.”
“Prohibition is a business,” Capone would say. “All I do is to supply a public demand. I do it in the best and least harmful way I can.”
As he prepared, for the first time in his life, to go before a jury of his peers, Capone seemed to feel that his true peers sat elsewhere, outside the jury box. But even with all his money, he still couldn’t buy respectability.
The barber’s son and a rich man’s son were hitting it off until a phone call brought the interview to an uncomfortable close.
“Police Headquarters,” Capone grumbled. “They say I kidnapped you.”
The note Vanderbilt had left at his hotel had caught up with him.
After Ness’s team made their second appearance before the grand jury, the Prohibition Bureau began siphoning off Untouchables for duty in other cities. In late August, Marion King went back to Virginia; Marty Lahart was transferred to Minneapolis in mid-September. Lyle Chapman returned to Detroit, but Ness managed to keep his pencil detective on the Capone case, following up leads in Michigan, Indiana, and Ohio.
Other work fell to Ness himself. On September 5, driving W. E. Bennett, Chicago’s special agent in charge, through the near North Side, Ness noticed a heavy Ford truck rumbling just ahead. Its driver was Frank Uva, a defendant in the Prohibition indictment, whom the Untouchables had arrested back in May. Just as Ness saw Uva, Uva saw Ness.
The truck surged forward and swerved onto Chicago Avenue, heading west. Ness sped after it, a convoy car of gangsters in hot pursuit. At Dearborn, Uva made a hard high-speed left, scattering other cars, sending frightened drivers up and over the curb. Ness managed to get ahead and tried to block the truck’s way, but the convoy car zoomed, ready to crash headlong into him to let the truck escape. Ness had no choice but to back up and let the truck by, though he stayed tight on its tail, zigzagging through the Gold Coast for almost half an hour as Uva tried to shake him.
Finally, the men in the convoy car flashed a signal to Uva: Give up the truck. Uva and another man leapt from the moving vehicle moments before it collided with a light pole at 436 North Clark Street. Ness slammed on the brakes, jumped out of his car, and dashed after Uva, arresting him after a short pursuit.
Bennett searched the wrecked truck, finding seven barrels of beer—hardly a cargo worth such a chase. A few years earlier, Capone’s men would have just pulled over, knowing they’d be out of jail in no time. But now, the gang’s woeful financial straits left them desperate to protect every last drop of beer.
And with the conspiracy indictment hanging over them, Uva and others couldn’t risk another arrest.
Three days later, Judge Wilkerson met in his chambers with Michael Ahern and assistant prosecutor Dwight Green, setting the start date for Capone’s tax trial. Wilkerson allowed Ahern to quietly withdraw Capone’s guilty plea on the Prohibition charges. The grand jury’s work was winding down, their verdict largely a foregone conclusion. On September 10, they issued new indictments against several men and prepared a detailed report explaining why, legally, they could charge Capone only with conspiracy.
But Wilkerson didn’t want to hear their excuses. “I am interested in indictments,” he told assistant prosecutor Victor LaRue, “not reports.”
Grand jury foreman S. J. Nelson shuffled around the Federal Building, office to office, the report in his pocket. Wilkerson wouldn’t give him a hearing; no one else offered to read the document. Finally, Johnson pulled Nelson into conference.
After fifteen minutes, the foreman emerged, shamefaced and sullen. In full view of reporters, he withdrew the report and tore it to pieces.
“I have nothing to say,” Nelson said. “I don’t want to spoil Mr. Johnson’s case. He has handled it well.”
Asked by a reporter what he and Nelson had discussed, Johnson said the foreman had merely come in to say good-bye.
Ness’s chances of getting his day in court with Capone dissolved the moment Nelson tore up his report, but Ness seemed not to know it. On September 21, he and the Untouchables raided a beer distribution plant at 222 East Twenty-Fifth Street.
This time they chose not to use their trademark truck. Instead, Ness and three other agents concealed themselves near the plant’s front door and waited for a beer truck to arrive. When one did, they climbed in back and rode inside, then sprang out and collared four gangsters.
One was Frank Conti, a Capone lieutenant arrested at three previous brewery raids. Another was the manager, caught looking over a list of ninety-six speakeasies—each joint’s name in code, but the addresses spelled out. Ness recognized “some very well-known places of business,” including one owned by a Capone associate named in the Prohibition indictment.
Ice had been dumped all over the floor, turning the place into a giant refrigerator. Evidently the gang had just started to convert the plant into a distillery, installing a costly ventilator to funnel out fumes. The agents seized more than nine thousand gallons of cooled beer and $25,000 worth of equipment, but Ness decided to see if another delivery truck could be snared as well. His men locked the entrance and began to wait.
Before long, another truck rumbled up and its driver pounded on the front door. The Untouchables let him in and arrested him. His companion jumped from the truck and made a break for it, but didn’t get far before two Untouchables ran him down. These agents knew the fleeing man all too well; he’d tried and fail
ed to bribe them once before.
By now, federal officials estimated the Untouchables had cost Capone more than half a million dollars in seized vehicles, wrecked equipment, confiscated product, and legal fees. The stills and breweries they’d shut down represented an even greater loss of $2 million in annual income.
Apart from this economic damage, the squad’s very existence had a chilling effect. The coverage given their exploits made this small, unruly band seem like a crack team of omnipresent crime fighters. Capone’s drivers, fearing arrest, began abandoning beer trucks if they so much as got caught in traffic.
“The word that Ness’s men are working automatically closes breweries and liquor depots owned by the syndicate,” wrote the Herald and Examiner. “The menace of the ‘untouchables,’ gang members have admitted, has seriously curtailed the syndicate’s revenues.”
A Chicago Daily News reporter confided to the Bureau of Investigation “that members of the Capone syndicate had on various occasions made known the fact that [Ness] was the one Prohibition Agent that they were afraid of.”
Ness cemented this reputation with perhaps his most audacious stunt. That fall, he received orders to move all the trucks and equipment his squad had confiscated to a warehouse across town. A handful of men could do the job in several shifts, but Marty Lahart suggested doing it all at once. Ness readily agreed, and had the trucks washed and polished until they practically gleamed.
Then he plotted out a route taking the motorcade well out of its way but right past Capone’s Lexington Hotel headquarters. The Untouchables, heavily armed, sat scattered throughout the convoy, ostensibly to guard against hijackers but mainly as a show of force, wearing the pearl-gray hats favored by the Capone mob just to rub it in.
Shortly before the trucks set out, Ness placed a call into Capone’s office at the Lexington. After months of listening in on the gang’s wiretapped conversations, Ness knew how to talk his way past the underlings and get to the “Big Fellow” himself—he used Capone’s favored nickname, “Snorky.”
Scarface and the Untouchable Page 41