Johnson’s report, designed to recommend Nitto’s parole, had convinced the board to keep him behind bars. That was the first they learned about Nitto’s connection to the Chicago Outfit, and they weren’t about to let one of Capone’s men out ahead of schedule.
Their decision was final. Despite the head-scratching efforts of George Johnson and Elmer Irey to go to bat for him, Nitto served out his term. With a few months off for good behavior, he left Leavenworth on March 24, a free man.
Since the government had failed to keep its end of the bargain, Nitto saw no reason to do the same. His plans to go to Kansas City and begin an honest career remained indefinitely on hold—had those plans ever really existed.
Four days later, the Associated Press reported Nitto’s return to Chicago might initiate “open warfare,” with some Outfit members seeking to stop him “from taking charge of the syndicate” during Capone’s incarceration.
Two days after Nitto’s release, Eliot Ness prepared a report for George Johnson summarizing his activities over the past fifteen months.
The Untouchables, Ness wrote, seized six breweries, five beer distribution plants, four stills, twenty-five trucks, and two cars. Brewery losses cost Capone more than $9.1 million in annual revenue; seized equipment, vehicles, and product another $530,700.
Ness noted, with obvious pride, “the Capone organization felt the presence of this small United States Attorney’s group more acutely than any other organization.”
As proof, Ness cited growing desperation among Capone’s men: “The attitude of the persons arrested has . . . changed from one of kind indulgence such as was shown in the beginning of 1931 to despair and violence . . . as these individuals realize that their backs are to the wall and that the United States Attorney plans to go through with the drastic seizures and arrests to its complete destruction.”
For his work on the Capone case, Ness received a promotion to chief investigator of the city’s regular Prohibition force. The new job freed him from having to deal with routine raids and busts, placing him in charge of all major liquor cases in Chicago.
By then, the Untouchables had collected some four thousand pages of evidence charting the beer racket’s structure. Now they had enough to link Ralph Capone and several others to defendants named in the original Prohibition indictment. On June 10, a year after the first charges came down, federal prosecutors promised to seek a broader indictment wrapping up every known member of the bootleg conspiracy.
“When the bombshell breaks,” said the Chicago Daily News, “the men at arms of the Capone syndicate, scores of crooked policemen and hungry prohibition agents will be starting out of Chicago with no plans for returning.”
But reports of the Outfit’s demise were sorely premature. Despite declaring, as late as April 1932, that he was definitely “going to try this case,” George Johnson had no intention of actually going through with it. He saw the indictment solely as insurance, a tool to keep Capone behind bars.
With a conspiracy charge hanging over his head, Capone had little hope of winning parole. And if a higher court overturned his tax conviction, the government could use the Prohibition indictment to seize him right away and haul him back into court as a bootlegger.
Although Ness had provided an opening to break up the rest of Capone’s gang, Johnson remained narrowly focused on his primary target—the Big Fellow.
The task of distilling all the squad’s evidence into a final case report fell to Lyle Chapman, who had returned to Chicago earlier in the year. As usual, Chapman attacked the job with all the sluggishness and recalcitrance that give government employees a bad name.
Soon after receiving the assignment, Chapman asked Special Agent in Charge W. E. Bennett for permission to work at home, where he kept all the evidence—sensitive, irreplaceable documents. This surely horrified Bennett, who ordered Chapman to bring the records into the office at once and place them under lock and key. But Chapman kept dragging his feet.
“It is now approximately two months after you were supposed to start writing this report,” Bennett wrote him on August 25, “and I have still to see any evidence of your progress.”
Like an exasperated teacher, Bennett ordered Chapman to “conform to the working hours of this office” and to “perform your work . . . in this office,” providing status updates every ten days.
Chapman blamed his slow pace on the “awful mass of evidence” the Untouchables had gathered. Records from Ness’s earlier investigation of Ralph Capone, including the Montmartre wiretap, now had to be collated with information from more recent raids.
“I think the time is well spent in doing this job in thorough shape,” Chapman wrote. “It will not only put everything in shape for the report, but it will be in just the shape the U.S. Attorney trying the case will want it, and the job would have to be done by somebody anyhow.”
The Bureau had little choice but to wait. Few agents had Chapman’s skills for synthesizing such data or his knowledge of the case.
Meanwhile, Chapman lived in scandalously high style. He’d recently married a woman almost twenty years his junior, and they liked to spend their evenings at the “notorious” Vanity Fair nightclub, where liquor was served openly—“probably a questionable place for government officers to be,” Chapman admitted.
He claimed he stuck to ginger ale and ordered it only because everyone around him “was drinking something.” But a companion, teenaged Viola Bourke, swore she saw him imbibe more than once. Eager to impress, Chapman would often bring her into the office, brag about his work on the Capone case, and show off pieces of the case file.
The Prohibition Bureau learned of this after Bourke’s mother, concerned “her daughter was running around with a ‘fast’ crowd,” complained. Chapman so desperately wanted to be seen as a “big shot,” she said, he would display top secret Capone evidence to anyone who cared to see it. And his boasting only got worse when he was drunk.
Other complaints filtered in about the disturbing amount of debt Chapman had racked up. Beginning in early 1931, the Untouchables had received $150 in monthly hazard pay, which Chapman took as license to fill his closet on credit. He spent $400 at one clothing store, and purchased two custom suits from a Detroit tailor for $130.
But after Capone’s indictment, the Bureau cut off Chapman’s hazard pay, leaving him unable to handle his bills. He made his troubles known to the ever-trusting Ness, who said the Secret Six might tap into their slush fund to help him out. On the strength of Ness’s word, Alexander Jamie secured Chapman a loan of $300, which he seems never to have paid back in full.
Bennett put up with Chapman’s layabout ways for some time, hoping the Capone report would still materialize. By mid-December, with no report in sight, an exasperated Bennett took Chapman off the case and brought Maurice Seager in from Iowa to finish up. The following summer, in the culling of the force post-Prohibition, Chapman was among the first to go. He returned to California, and spent his later years finding new ways to handicap football teams.
The evidence Ness and the Untouchables gathered did eventually make it into a courtroom, but as part of a civil, not a criminal, proceeding. In September 1935, the city of Chicago sued Al and Ralph Capone, Joe Fusco, Bert Delaney, and several other defendants named in the conspiracy indictment for unpaid sales tax of $119,367 on 15,894.5 barrels of beer sold during Prohibition.
Demanding taxes on the sale of illicit products was bold, especially as these bootleggers had already paid taxes of a sort in the form of bribes to city officials. But some defendants, seeing just another payoff, settled up for a few thousand dollars or, at the very least, a $25 fine. For those who didn’t pay, the case ended in July 1942 when the Court dismissed the charges with prejudice.
Though ordered to turn over all evidence, Chapman left the Bureau with one big souvenir: a duplicate of the entire 150-page case file. Three decades later, he showed it off to a reporter who’d come to find out if the Untouchables were anything like they seemed
on TV.
“I often find myself looking it over,” the seventy-two-year-old Chapman said. “It brings back exciting memories.”
Even after all those years, Chapman still wanted to be seen as a big shot.
On May 2, 1932, the United States Supreme Court refused to hear Capone’s appeal. Federal officials in Chicago prepared to whisk him away to the federal pen.
Mother Capone was with her son at the county jail when he learned of the decision and flew into a rage, screaming about the plea bargain Wilkerson had refused to let him take.
“I’m still ready to fight if my lawyers say so,” Capone said. “The Supreme Court should have reversed my case. The sentence was excessive. I was a victim of public clamor.”
The month before, the Supreme Court had ruled the statute of limitations on income tax evasion ran out after three years instead of six. George Johnson had feared just such a ruling—the bulk of the case he and Frank Wilson had built fell outside the three-year limit. And the jury, in their rush to a verdict, had convicted Capone of misdemeanors instead of felonies for 1928 and 1929—the only years unaffected by the court’s ruling.
This should have been a major victory for Capone, invalidating all his felony convictions and shaving a decade off his prison sentence. But Michael Ahern and Albert Fink again let their client down, never seriously raising the issue on appeal. And having missed that opportunity, Johnson said, “Capone could not recover it again.”
A new set of Capone lawyers would attempt another appeal, arguing that from the moment Judge Wilkerson decided to proceed under the six-year rule “everything done thereafter was void.” But the court decided the time Capone spent away from Illinois—whether in Florida or in a Pennsylvania prison—would not be counted toward the statute of limitations. On that absurd basis, Capone’s eleven-year sentence stood.
“If the Capone defense had pleaded the statute of limitations in his behalf at the trial,” observed the Christian Science Monitor, “he probably would have gone free.”
Only then did Capone realize how badly Ahern and Fink had mishandled his case. Eventually, he would demand his money back. But the pair’s incompetence had been obvious all along—they never sought a change of venue from a clearly biased judge; failed to challenge such key evidence as the Hawthorne Smoke Shop ledger, the Mattingly letter, and the signed check; and all but ignored the central issue: the statute of limitations.
Even worse, their half-baked defense played right into the prosecution’s hands, providing evidence of Capone earning a large and taxable income. One lawyer who studied the case described Ahern and Fink as “really inept,” their courtroom tactics “terrible.”
But Ralph Capone had another explanation. According to his granddaughter, Bottles believed the Secret Six bribed Ahern and Fink to throw the case. Of course, the Six never proved themselves that effective, but a payoff from somewhere would explain the awful performance of two otherwise successful attorneys.
On May 3, Capone awoke at 8:00 A.M. A light rain dampened the city, gloomy skies a perfect match for Capone’s mood. He ate little for breakfast, then packed the few items he needed for his trip: a toothbrush, a clean shirt, and a pair of socks. His hairbrushes went as a parting gift to his cellmate, a teenager accused of voter fraud.
“Here, kid,” Capone said. “Go brush your hair.”
Restless and surly, Capone paced his cell and played cards with his cellmate, who kept trying to cheer him up. But Capone’s cocky confidence had dissolved.
Fink and Ahern arrived later that morning for a brief conference. Like doctors with a terminal patient, they could offer little hope.
“I don’t know anything we can do for him now,” Fink told reporters as he left the jail.
After all, hadn’t they done enough?
At noon, U.S. Marshal Henry Laubenheimer received the court order sending Capone to the penitentiary. Most everyone, the prisoner included, assumed Capone would go to Leavenworth, where Jack Guzik was serving his own tax-evasion term.
But the Justice Department, seeking to isolate Capone from his allies, chose instead to send him to Atlanta, reputed to be the “toughest” federal prison in the country. The once-proud bootleg baron, rumor said, would soon be washing other prisoners’ dirty laundry.
After lunch, which Capone chose not to eat, his family arrived to say good-bye. Mae, Sonny, Theresa, Mafalda, and Capone’s younger brother Matthew crowded into the cell as a deputy warden, a deputy marshal, and a cop kept watch.
“For a while there was quiet weeping,” reported the Herald and Examiner. “Whispered conversation. Impulsive embraces.” Then the family left, eyes dry, bodies dragging.
Federal officials reserved a Pullman car on the southbound Dixie Flyer leaving Dearborn Station at 11:30 P.M. They hoped to keep their destination secret, but word of the last-minute switch leaked out almost immediately.
Capone heard the news that evening in his cell over the radio. Fearing the gang might attempt a rescue, or that someone would try to shoot Capone, the authorities gathered twenty men—police detectives, Prohibition agents, and deputy marshals—to guard him from all sides. Among those chosen was Eliot Ness, ready to see the work of the Untouchables to its conclusion.
Ness arrived at the county jail around 9:30 P.M., in a light fedora and a rain-flecked topcoat. Marshal Laubenheimer, fifty-eight, face as pinched as a Puritan preacher’s, gave the clerk his warrant for “the bodies of one Alphonse Capone and one Vito Morici.” The latter—a young car thief, handsome, slight—was headed to Florida for trial.
Capone left his cell wearing a topcoat over a custom-tailored $125 blue suit and his trademark pearl-gray fedora with matching ribbon, looking every bit the iconic gangster. When the marshals shackled him to Morici, Capone asked his handcuffs be kept out of sight. He didn’t mind press photogs or onlookers as much as the newsreel cameramen—Al didn’t want his moviegoing son seeing his father looking like a crook.
The prisoners walked out into the receiving yard ten minutes before ten, surrounded by Ness and the other guards. The group had to push its way past a throng of photographers. Camera flashes assaulted Capone’s eyes; huge lamps, set up by the newsreel crews, bathed the whole scene in light. An occasional flare split the night sky.
Capone smiled around the cigar clamped between his teeth, doing nothing to hide his notorious scars. “You’d think Mussolini was passin’ through,” he said.
“You got a bum break, Al,” someone shouted.
The marshals loaded the prisoners into Laubenheimer’s car. Ness took his place inside the lead vehicle, peeling out the front gate just after 10:00 P.M. A crowd outside hoped for a glimpse of Capone, but the car carrying the gangster charged out of the jail, sending onlookers scattering.
“After that it was every driver for himself,” reported the New York Times. “Fenders and bumpers clashed and pedestrians were trampled in the stampede to avoid being hit by the fast moving official motors.”
The convoy of cars raced up California Avenue, then cut across Ogden to Jackson. Wailing sirens echoed through the Loop, alerting everyone to the passing procession.
“Police officials,” said the Times, “described the ride . . . as the wildest and noisiest in their experience.”
At Clark Street, a stoplight brought the parade to a halt. Capone found himself outside the great “granite octopus” of the Federal Building, the last place he’d entered as a free man. Then the cars whipped around the corner and screeched to a stop in front of Dearborn Station, its redbrick clock tower looking out over the Transportation Building half a block away.
More onlookers pressed in as the marshals struggled to get Capone out of the car, the handcuffs and his bulk making it difficult to maneuver. The prisoner couldn’t hide his distress, looking like “a picture of misery,” according to the Times, but he managed a few smiles for the cameras. Then, as the group moved into the station, Capone jerked at the handcuffs, temper flaring, pulling Morici along.
“Da
mn it, come on,” he snapped.
The deputy marshals led the way, clearing a path into the train shed with police picking up the rear. Capone walked at the center of the thick knot of men, hands thrust deep into his pockets to hide the cuffs. Marshals strode on either side, Morici just behind. Ness marched at Capone’s right, at times within arm’s length of him. As they rounded a corner, straight into another snarl of press, Ness straightened his hat and tugged at the lapel of his coat, as if collecting himself for the cameras. His head jerked back and forth from the crowd to Capone. The gangster lumbered forward calmly, seemingly unfazed, with a faint, defiant sneer. A wire service photographer snapped their picture—the only known photo of both adversaries together.
Just before they reached the Pullman car, Capone spotted a few old friends among the crowd, including two of his younger brothers. They exchanged nonverbal good-byes. Then the marshals led Capone up and inside the train, securing him and Morici in the first compartment. Reporters crowded into the car, eager to snap a photo or snag a quote.
As the Dixie Flyer pulled away, Ness stood on the platform, watching it disappear into the night. This was the closest he’d ever get to Capone, his one chance to meet the man face-to-face. He’d been circling the gangster for almost four years—breaking up the Outfit’s allies in Chicago Heights, listening in on Ralph’s operations in Cicero, and finally with his raiders hounding “Snorky” to the gates of federal prison.
Seeing Capone depart filled Ness with immense relief, and the sense the Untouchables had served their purpose. Yet he felt a certain emptiness, too, after this final, fleeting brush with the nemesis he’d been denied taking head-on.
“We did our part, of course,” Ness later told a reporter. “But the real work of sending Capone to prison was done by the tax investigators. Our job was more spectacular, that was all.”
His modesty would not be contagious: the tax men would in future often neglect to mention Ness and the Untouchables, or play down their role shamefully.
Scarface and the Untouchable Page 49