In September, the court heard, Mattingly appeared at the Federal Building in Chicago to relay Capone’s accounting and an offer to pay income tax. “Mr. Mattingly sat down across from me at the desk and said they had done the best they could to get the records,” Frank J. Wilson, the IRS agent, testified. “He took some papers out of his inside coat pocket and in turning them over he would look out the window and talk very slowly, deliberately. Finally he threw the papers over to me. There was a two-page letter with carbon copies, held together with a paper clip. He says, ‘This is the best we can do. Mr. Capone is willing to pay tax on these figures.’ ”
In what became the decisive moment of the entire trial, Fink objected to the letter, which was certain to contain proof that Capone knew he was supposed to pay his taxes and hadn’t. The letter was so convincing that the newspapers took to calling it the “confession letter,” and it was now apparent that Capone was, in all probability, facing conviction and a jail sentence, following the example of his brother Ralph and Jake Guzik.
To hear the matter out, the judge excused the jury, and the lawyers went at it. “This is the last toe,” Fink wailed at the bench. “They have got him nailed to the cross now. This is just putting the last toe on him. I think in justice to the defendant that your honor ought to let the whole thing go in now, because there are some things in this letter that indicate that the lawyer was crazy.”
“Well, I don’t think so,” said Clawson. Neither did the judge, who eventually permitted the letter to be read into the record. It was an awkward document, trying to harness the astronomical and carelessly counted winnings of a racketeer with the strict accounting demanded by law:
Sir:
The taxpayer is now 31 years old, and has continuously lived with his wife since his marriage in 1917. He has one child, a son, now nearly 12 years old. Since 1922 he has been the principal support of his widowed mother and his sister and brother, now 19 and 21 years of age, respectively.
Prior to the latter part of the year 1925 he was employed at a salary which at no time exceeded $75 per week. During the years 1926 to 1929, inclusive, he was the recipient of considerable sums of money, title of which vested in him by right of possession only. . . .
The only attorneys employed by the taxpayer personally during this period were Nash & Ahern, Ben Epstein and Capt. Billy Waugh, all of Chicago, Ill. The so-called bodyguards with which he is reputed to surround himself on the occasion of infrequent appearances in public, were not, as a general rule, his personal employees, but were, in fact, employees of the organization which participated in its profits. Several of these employees stopped at the same hotel with the taxpayer while he was in Chicago. . . .
The furniture in the home occupied by the taxpayer while he was in Florida was acquired at a cost not in excess of $20,000. The house and grounds have been thoroughly appraised and the appraisal has been heretofore submitted to you. There is a mortgage against the house and grounds of $30,000. His indebtedness to his associates has rarely ever been less than $75,000 since 1927. It has frequently been much more.
Notwithstanding that two of the taxpayer’s associates from whom I have sought information with respect to the taxpayer’s income insist that his yearly income never exceeded $50,000 in any one year, I am of the opinion that his taxable income for the years 1925 and 1926 might fairly be fixed at not to exceed $26,000 and $40,000 respectively and for the years 1928 and 1929 not to exceed $100,000 per year.
With the damning proof offered by the Mattingly letters now on the record, the prosecution had made the heart of its case. Even Capone, who had been a model of affability throughout, looked shaken by the revelation. A reporter noted, “The fatuous grin began to disappear and his pudgy fingers toyed nervously with the diamond-studded watch chain that glittered on his paunch.”
• • •
While Capone sank under the weight of his tax burden, Eliot Ness boldly continued to arrest the men who ran Capone’s bootlegging operation. Now holding the title of assistant chief of special Prohibition agents in Chicago, Ness arrested a Capone henchman named Nick Juffra (alias Frankie Rose), who had once worked for Joe Fusco, one of Capone’s lieutenants. Juffra became the sixty-ninth Capone bootlegger whom Ness arrested.
However, despite the aura of derring-do which continued to cling to Ness, he had lost the public’s attention. All anyone cared about these days were the events unfolding in Judge Wilkerson’s courtroom.
• • •
On Friday, October 9, the government moved from strength to strength, producing its showiest evidence of Al’s lavish expenditures on luxury items. The prosecution had a serious purpose; by demonstrating how much the accused spent, the government could infer how much he earned, but Damon Runyon, for one, found the premise ridiculous: “Your Uncle Sam argues that if a man spends a raft of money he must necessarily have a raft of money to spend, a theory that sounds logical enough unless your Uncle Sam is including horse players.” As even Runyon had to admit, the tactic made for good courtroom theater, “LAVISH CAPONE LIFE AND $5 TIPS BARED—HIS ATTORNEYS RESENT ‘SPANISH INQUISITION,’ ” the New York Times trumpeted. The government was pursuing a time-honored trial tactic, to sway the jury by making them envious of the accused with little things, concrete things, things like expensive shirts and suits and ties and shoes, things the jurors could never afford to buy for themselves. In the process, the jury and the public acquired a window on Capone’s private life.
The prosecution turned its attention to Capone’s gambling and business interests in Miami to prove that he had earned huge sums of undocumented, unreported income. Their first witness was a Florida state attorney, who revealed how concerned local officials were that Capone would introduce gambling to Miami and described a 1928 meeting he had with the accused and his lawyer at the time—presumably Lawrence Mattingly. “Capone and a partner of his came in,” he recalled. “I said I wanted to talk to Capone about what he proposed to do in Miami. He said he was there to rest. I asked him what his business was but his attorney objected. I said that if I couldn’t ask him what I pleased, the conference was off so far as I was concerned. Capone then said, ‘I’ll answer that question. I am in the cleaning business in Chicago.’
“ ‘What else?’ I asked.
“ ‘I am also in the real estate business,’ he said.
“ ‘As a matter of fact,’ I asked, ‘aren’t you in the gambling business?’
“ ‘I have an interest in a racetrack in Cicero,’ he said.
“ ‘As a matter of fact, isn’t gambling your chief occupation?’ I asked.
“Capone hesitated, and said, ‘Yes, it is.’ ”
Dwight Green handled the prosecution’s next witness, Parker Henderson, the Florida hotel manager whom Capone had befriended and used. Dressed in a stylish brown suit accented by faint white stripes, Henderson seemed ill at ease on the stand; he obviously feared the consequences of testifying against Al Capone, but the defendant tried to reassure him with a broad smile.
As the questioning began, Henderson said he had first met Capone in Miami in January 1928. “I was called to the defendant’s room by a Miami man named George Downs, and I was introduced to a fellow named Nick Sorello,” he explained, referring to a Capone bodyguard. “I was introduced to him as Al Brown. Mr. Downs said that they were some friends of his from Chicago, and that they were going to be there throughout the winter, and wanted me to take care of them. Some time during the conversation, Mr. Brown told me that his name was Al Capone.” The following day, Henderson said, he accepted a dinner invitation with Capone. The racketeer sent his black Lincoln to pick him up.
“Who was present?”
“Sorello’s wife, Mr. Capone’s wife, Sorello, Mr. Capone, myself, and I think Denny Cooney and his wife.” Cooney ran several brothels controlled by Capone. Henderson went on to testify that he proceeded to see Al nearly every day throughout the winter of 1928-29.
After drawing all that he could from Henderson on the subject o
f Capone’s receiving wire transfers of money, the prosecutor asked about the curious way the defendant had purchased his Miami estate.
“Some real estate agents called me at the Ponce de León Hotel and wanted me to get in touch with Mr. Capone in regard to selling some property,” Henderson explained. “This was in March or April, 1928. I was closely connected with Mr. Newton Lummus, then mayor of Miami Beach, and I told him that these real estate men were figuring on selling Capone some property and asked him what he thought about it. Lummis said that if anybody sold Capone any property he and I should try. So I asked Al if he was interested in buying any property and he said he was, in buying a winter home. So we made an appointment with him and carried him out and showed him several places. This place on Palm Island he seemed to like very much. Later he told me had decided to take it. He gave me money to put up the binder.” The amount was $2,000, to which Capone later added $8,000, and the deal was done. However, Capone did not buy the home in his own name. To avoid publicity, the sale was listed in the name of Parker Henderson, who kept possession for several months before quietly deeding it to Capone’s wife, Mae.
The deed was now admitted in evidence, and then Lummus himself took the stand, corroborating Henderson’s story.
“Mr. Parker Henderson was over to see me one day,” he informed the court, “and told me that Mr. Capone was interested in the purchase of a home, and he wanted to know if I could run the sale through our office, which we agreed to, and I went around and took a look at several places on Miami Beach, and after looking at them several days later Mr. Henderson advised me that Mr. Capone was interested in a place on Palm Island that was later purchased.” Under questioning by the prosecution, he gave further details of how Capone accomplished the sale: “The purchase price was $40,000. A $2,000 binder was made at that time, and I saw that payment; it was paid by Mr. Parker Henderson. The balance of $8,000 in cash, at the closing of the transaction, was paid in our office, and I witnessed the deed to Mr. Parker Henderson from Mr. Popham, the owner of the place. The balance of the purchase price was represented by three mortgages of $10,000 each, due on or before one, two and three years respectively.” As explained by Lummus, Capone’s machinations, while deceptive, were not in themselves illegal or the subject of the indictment; the idea was to prove that he had enough money to buy the Palm Island house. To demonstrate this point, the prosecution now produced no less than three Miami-based Western Union operators, who collectively described money transfers to the Capone family of nearly $40,000.
The prosecutors were not quite finished. Next, McLean Smith, a clerk at the Metropole Hotel, where Capone had lived in 1925, took the stand, and under much prodding he reluctantly provided further clues to the vast amounts of cash Capone controlled. Questioned by Jacob Grossman, Smith told of Capone’s five-room suite on the fourth floor and another suite consisting of six rooms.
“I ask you if you ever saw these sheets,” said Grossman, producing the hotel’s records.
“I made them out,” Smith replied. “When they paid me money, I put it down.”
“Here’s a record for $1,500, dated March 25, 1927, for the rooms occupied by Mr. Capone, is that right?”
“Yes.”
“Under what name did Capone register?”
“Under the name of Mr. Ross.”
“Here’s an entry for Mr. Ross,” Grossman continued, “on September 4, 1927, $150 for rooms and $650 for incidentals. Was that in cash?”
“Yes.”
Capone’s attorney Albert Fink protested that Grossman was merely trying to show how much Capone spent, but that, Judge Wilkerson reminded him, was precisely the point. “If there’s money going out,” the judge insisted, “there is a presumption that it is coming in.”
Grossman resumed his line of questioning, showing that there was, indeed, plenty of money coming in. “Here’s an entry for Mr. Ross on September 28, 1927, an entry of $1,633. What was that for?”
“For a party of friends.”
“Ever see Jack Guzik there?” asked Grossman, referring to the man who doubled as Capone’s accountant and brothel supervisor.
“Yes.”
“How would Capone pay his bills?”
“In cash.”
“What denominations?”
“The ordinary denominations used by Uncle Sam,” the clerk shot back, amid laughter.
“Well, how large?”
“Oh, $100 bills, sometimes $500 bills.”
“Ever see Al distribute any tips?”
“Oh, yes, he distributed small gratuities.”
“How much?”
Smith’s reply caused a visible—and, to the prosecution, a gratifying—reaction among the jurors. “Oh, $5 or so.” With that, Smith stepped down from the stand.
Although the details of Capone’s myriad financial transactions had an irrefutable logic about them, from the jury’s standpoint they proved to be less than compelling. The droning testimony, the methodical questioning, and the gathering air of inevitability about the outcome of the trial all combined to lull several jurors to sleep. The prosecution’s mission was not to entertain but to instruct, however. So long as the jury understood and accepted the premise that proof of expenditures equals proof of income, the government had succeeded in mounting an effective, if bloodless, case against the accused. In sum, the Chicago Tribune announced, “Al Capone last night found himself caught in a net of his own weaving.”
• • •
That day a Capone confidant also found himself entangled in the snares of the law. The debonair Sam “Golf Bag” Hunt, Al’s former bodyguard and boon companion, stood before Judge Matthew Hardigan in another Chicago courtroom.
The charge against him, that of obliterating the serial number on a pistol, stemmed from an arrest fully two years earlier, when Chicago police discovered an abandoned automobile, raked with bullets and spattered with blood, in Grant Park near the Art Institute, a tranquil neighborhood where gangsters did not normally pursue their nefarious activities. The police arrested Hunt and another man they discovered fleeing the scene. No proof of any murder surfaced, however, so the only crime involved the discovery of a pistol with defaced serial numbers, but the evidence proved sufficient to convict Hunt.
As he listened to the sentence being pronounced—ninety days in jail, an insignificant penalty compared to what Capone faced—Sam Hunt burst into tears.
• • •
October 10 brought nasty weather. Sheets of rain fell across the city, sending pedestrians scurrying for shelter and keeping curiosity seekers at bay; less than a dozen were on hand this gloomy morning to observe the brief Saturday morning session. “The outside murkiness had worked into the halls of justice, as it will on rainy days,” said one reporter, “making the white marble walls seem gray as parchment, adding an air of deeper tarnish to the gold scroll column tops, driving the figures in the gloomy wall paintings into gloomier retreat.” In contrast to the oppressive weather, Capone was resplendent in a double-breasted suit of a deep green hue, an immaculate white handkerchief peeking from his breast pocket, a white fedora, green tie, and black shoes.
On this foul day the government turned to documenting Capone’s personal expenditures: a task involving fifty witnesses, primarily tradesmen and merchants who testified about the value of the goods and services they had furnished to him over the years. There was the Miami real estate agent who testified that he had rented a house to Capone on Indian Creek Drive in 1927 for six months; Capone had always paid the monthly rent of $2,500 in cash; there was the builder who testified seeing money wrappers designated for $1,000 strewn about the house; the butcher who said Capone paid him approximately $6,500 a year—in cash, always in cash when you were dealing with Mr. Capone; another builder who received nearly $11,000 from Capone for improvements on a garage at the Palm Island estate; the contractor who garnered $6,000 for work on the boathouse; the interior decorators who received $1,725 and $1,500 respectively for their work; and the departmen
t store manager who testified receiving $800 in cash in 1928 for linen and glassware with which to set the table in the Capone household. When Capone paid by check rather than cash, the testimony revealed, he turned to the ever present, ever-useful Guziks; they wrote the checks—on one occasion $7,000 for some furniture for the Capone household—and Capone reimbursed them. The evidence that Capone had enjoyed a fantastic income, well in excess of the $100,000 his lawyer Lawrence Mattingly once claimed, was overwhelming.
The day’s real excitement began once Judge Wilkerson declared court adjourned until Monday. The courtroom emptied, and Capone headed down the corridor to the elevator, “a powerful figure, . . . quick in stride for a man who tips it at 220 pounds,” in Berger’s words.
“Just a minute,” someone said. Instantly two policemen isolated Philip D’Andrea, Capone’s constant companion and bodyguard throughout the trial. Under orders from Judge Wilkerson himself, the cops frisked D’Andrea; one slipped his hand under the bodyguard’s coat and to absolutely nobody’s surprise found a .38-caliber pistol. Wilkerson was certain that D’Andrea’s mere presence in the courtroom had been sufficient to intimidate several witnesses who had already testified. Actually, the loaded weapon he carried was only part of the aura of menace he introduced into Judge Wilkerson’s court. He had also whiled away the hours throwing “the look” at various witnesses, the menacing expression warning them to shut up or else. D’Andrea had not been subtle, for even Judge Wilkerson from his vantage point high on the bench had noticed the chilling effect of the bodyguard’s murderous scowl on various witnesses whose memories suddenly became vague and confused under its malevolent influence.
Now it was D’Andrea’s turn to tremble; as the police detained him, his face turned white, and Capone instantly complained to his lawyers. “Capone without a guard seemed a flustered Capone,” Berger observed. Suddenly D’Andrea produced a shield; it was shaped like a star and read: “Deputy bailiff of the Municipal Court.”
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