by Deirdre Bair
These myths were added to the others that accrued during Al’s stay in Miami, but there were also true stories about his lavish entertainment that were given during his 1931 tax evasion trial, in testimony by witnesses under oath. Mostly they showed that no matter how the Capones tried to fit into the community, they were never going to be accepted. Business moguls, society leaders, and politicians were happy to accept the hospitality at Palm Island, even if only to be able to say they had been there. However, it was a different matter altogether when it came to returning hospitality, for they never offered it.
Mae did take part in parental activities at Sonny’s school, where she had cordial relationships but no friendships. Her closest friends remained her siblings, so hers was a limited social circle. Al received a reserved, qualified, and distanced welcome in the legitimate business world when he invited many prominent business leaders to his parties. His main motive was to enlist them firmly on his side as he enlarged the many rackets already under the Outfit’s control and as he moved to acquire new ones. At that time, the Outfit controlled all the gambling in Dade County, the casino in the Floridian Hotel, the Palm Island Club, and the South Beach Dog Track, where there were slot machines and table games as well as dog racing. In one of his ongoing parties, more than thirty men accepted the invitation of their fellow business leader (as he liked to present himself), even welcoming him by saluting him as a new member of Miami’s business community and gifting him with an engraved fountain pen. It was all for show, and even though Al continued to expand his business interests (as he always called them), everything within polite society that he wanted was greeted with polite rebuffs, marginalization, or outright denials.
Nevertheless, buoyed by this welcome into the business community, Al followed it by donating $1,000 to the chairman of the Community Chest (precursor of the United Way), who was also the president of the local country club. As a prelude to applying for membership, he asked the president to arrange a meeting wherein he could meet other members who would look favorably upon his application. The man said he would try, knowing full well he had no intention of doing so, for “Mr. Capone…just does not fit into what I call society…he just would not mix.”
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Despite his being snubbed by the upper echelons of Miami society, most everything else was going Al Capone’s way there, and despite the ongoing investigations into the Lingle murder things were going his way in Chicago as well. He returned in early August 1930 and was so unconcerned by the activities of the federal and state agencies that were busily gathering evidence against him that he moved about the city with impunity. There were no further spurious attempts to arrest him, so taking care of the Outfit’s business became his primary focus.
The consensus was that Prohibition was on its last legs and would be repealed in a short time. Like a great beast of prey, the Depression had sunk its teeth firmly into the country by early fall 1930, and revenues from bootlegging, gambling, and prostitution were in serious decline. Forward-thinking businessman that he was, Capone recognized that he would have to find other ways to meet his large payroll, and labor racketeering seemed the most lucrative way to start. By 1930, the Outfit controlled the street cleaners, plumbers, and garbage handlers, and as John Binder noted, “an assault on the Pie Handlers’ Union was underway.” In all, thirty-three union locals related to transportation were controlled by the Outfit, and new takeovers were occurring almost daily. In business rackets, everything from cleaners and textile dyers to miniature golf courses and ice cream shops were either already under the Outfit’s control or about to come under it. Transportation unions like the Teamsters, the building trades, plumbers, and steam fitters—all were about to be brought into the Outfit.
At the same time, he concentrated on politicians, starting with municipal workers’ unions. In a calculated ploy, state legislators like Dan Serritella and Roland Libonati were the most prominent among those whose names began to be associated with Capone’s. He was well aware of the increasing fixation on his tax status, and to have so many high-level politicians in his direct employ or his debt might allow him to evade, if not prosecution, then certainly conviction.
The several months between August and November 1930 were important for shoring up his situation. At the end of November, Mattingly sent the long-delayed letter he had promised the previous April to the Chicago Bureau of Internal Revenue, and it was a masterwork of vagueness and equivocation. He began by saying that no part of it was an admission of any form of guilt that could be used against his client. The entire content was to be considered “without prejudice to the above-mentioned tax payer in any proceedings that may be instituted against him.” Mattingly said the facts he was stating were based “upon [his] information and belief only.” After a paragraph in which he outlined Capone’s responsibilities as the sole support of his entire extended family, Mattingly claimed that until late 1926 his only income was a salary that was never greater than $75 per week. How Capone could have managed to provide for six (or more) people in two households on that amount required a willing suspension of disbelief, which Mattingly tried to dispel with a vague and convoluted description of how Al earned his money between 1926 and 1929.
He had indeed received “considerable sums” but only “by right of possession” because they merely passed through his hands on their way to others. He admitted that Capone had become a principal “with three associates” in an unnamed business but had never invested capital in it. Thus, Capone was never “the banker for the organization, nor did he, ever, actively participate in the conduct of its individual enterprises.” Determined to prove that Capone had not made large amounts of money and to prove that he did not employ anyone directly, Mattingly named four lawyers and “so-called bodyguards” who were all on the payroll of “the organization” and who “participated in its profits.” To prove that the “large force of bodyguards did not continually surround him,” he added that only Frankie Rio had gone with him to jail.
Mattingly turned next to real estate as he discussed the Florida house and its contents. He wrote that he had not sought financial information from “the associates of the tax payer” (his name throughout for Capone), but he could still verify that his taxable income for 1925 and 1926 did not exceed “$26,000 and $40,000 respectively” and for 1928 and 1929 did not “exceed $100,000.” He did not describe how he was able to ascertain Capone’s income without doing any research into how he got it. How the lawyer could have thought such a letter would benefit his client has boggled the minds of many other lawyers who have studied Al Capone’s legal woes.
In 1933, two years after the trial of Al Capone had been concluded, Special Agent Frank J. Wilson wrote its chronological history in a report for the government. In it, he described how Mattingly’s letter worked against his client’s best interests and how he should have known that, just as in his earlier personal interview, the stipulation that nothing in it be held against his client was not legally binding and could indeed be used against him. Wilson wrote that between May 19 and September 20, 1930, Mattingly met several times in the bureau’s office with another agent surnamed Wilson and the revenue agent W. C. Hodgins. On each occasion, Mattingly expressed the strong desire to settle the case of nonpayment of taxes promptly and expeditiously. And each time, the agents told him that anything he wrote “would be used if necessary or advisable by the government in a criminal prosecution against the [non] taxpayer.”
The letter had the exact opposite effect of what Mattingly intended. It verified that Capone was at the very least a “member” of an illegal organization and more likely a “principal” and that he received a large share of the organization’s profits. Wilson went on to list the many ways in which Mattingly’s letter helped to convict rather than clear his client and how it became one of “the most definite evidences of the tax payer’s income.” Still, it was not easy for Wilson and his colleagues to find definite proof of income, legal or otherwise, to connect him to “big gambli
ng places, horse parlors, brothels, or bootleg joints,” and there was no written evidence that he received payment from any of them. If he found people who might provide testimony, they were either so hostile to the government that they were ready to perjure themselves or were so afraid of Capone and the Outfit that “they evaded, lied, or left town.”
In retrospect, and keeping everything that subsequently happened in mind, Al Capone’s swift downfall is astonishing, for despite all the obstacles in the government’s path and the still puzzling and unexplained conduct of his lawyer it took less than a year to convict him, and by June 18, 1931, the road to jail was inevitable.
Chapter 17
LAW ENFORCEMENT BY STIGMA
Al Capone didn’t stay on in Chicago after he attended to business, because he had several reasons to make himself scarce. There was yet another murder, but it was of mobster Joe Aiello and not a newspaperman, so it did not garner the same amount of outraged media coverage as Lingle’s had. The Unione Siciliana had always been the proverbial thorn in the Outfit’s side, as was Aiello, especially after he took over as president. The underworld grapevine was swift and accurate, and word soon reached Capone that Aiello thought it would be a good time to go after him again while he was distracted by his legal imbroglio. A short time later, in October 1930, Aiello was murdered, felled by what all agreed was a classic Capone hit.
The investigation that followed also came to a classic Capone conclusion: although several people said they saw the gunmen who fled the scene, they claimed they could not identify the shooters, the police made no arrests, and the investigation was closed. Even though it was just another gangland hit, every group investigating Al Capone was enraged by another instance of his allegedly getting away with murder, this time literally as well as figuratively. On top of his tax evasion, it was too much for law-abiding reformers to accept without wanting justice.
When Frank Loesch first issued his public enemies list, he said they were “not to be treated as citizens entitled to a fair administration of justice,” and he vowed to “keep the light of publicity” and “constant observation of law enforcing authorities” on them. The New York Times was one of the few papers to note how empty such statements were; in a story titled “Law Enforcement by Stigma,” it was rightly noted that Chicago authorities were exchanging all attempts at valid prosecution for one of simple harassment.
It just so happened that at the same time as the Aiello murder a municipal court judge in Chicago decided to go after every public enemy by sending them all to jail on an 1871 statute of vagrancy, seldom used then or since. Naturally, he intended to start with No. 1. In the words of Robert J. Schoenberg, Al’s most engagingly readable biographer, Judge John H. Lyle was “a lean, long-faced grump” as well as “a publicity hound.” He was most likely put up to using the 1871 statute by reporters or other crime-fighting groups, for no one thought him clever enough to conceive the idea on his own.
Lyle based his reasoning on a section of the statute that read “persons who neglect all lawful business and who habitually misspend their time by frequenting houses of ill fame, gaming houses, or tippling shops, are vagabonds” who, if found guilty, could be sentenced to hard labor for anything from ten days to six months. He argued that criminals belonged in this category, for they lived lavishly expensive lives, even though they did not have a visibly declared income or occupation to support them. Furthermore, if they were arrested and charged with vagrancy, they would need to pay exorbitant fines for bail, and if they paid the fines, the court could ask where they got the money. If they refused to explain or gave an untrue answer, they could be indicted by a grand jury, charged with perjury, and made to stand trial. There were so many flaws in Lyle’s line of reasoning that skillful lawyers knew they could clear their clients before they were arrested. However, Capone’s case was a special one and fraught with all sorts of danger after Mattingly’s disastrous decisions to let him appear before Bureau of Internal Revenue agents and voluntarily submit the statement of his income. Both these actions left him particularly exposed, possibly to legal moves not yet envisioned.
Meanwhile, Judge Lyle “bombinated from the bench,” declaiming that Capone should be put to death in the electric chair, never mind that he had not been proven guilty of anything. “Capone has no right to live,” the judge fulminated as he explained why he thought Al should die: “Capone has become almost a mythical being in Chicago…He is more than a concentrated crime wave. He is a real and powerful political force.” Indeed, Al Capone was everything the judge said he was, but the law required much more than a judge’s personal bombast for a conviction, let alone a sentence of death.
On four different occasions, Lyle was so out of control with his public comments that his superiors had him transferred from criminal to civil cases, where he could “torture propriety a little less.” Unfortunately for Capone, the public adored Lyle because the CCC sang his praises and newspapers touted him as a heroic defender of the public good, so he was returned to criminal cases. Every time Capone’s case was transferred out of criminal court, the CCC succeeded in having it sent back, cheering Lyle to go after him and every other of the public enemies. When a reporter for the Tribune asked Lyle what he hoped to accomplish with vagrancy warrants, he said they would keep the criminals so busy in court that they would not have time for their lives of crime. It was a simplistic and highly unrealistic line of reasoning, laughable because the first (and only) criminal he ever arrested was Danny Stanton, a low-level felon who went to jail on a charge of gun possession. His lawyer paid the bail, and he was out the same day as he was arrested.
Once again, Lyle “bombinated” after Stanton’s release, excusing himself for being unable to enforce the vagrancy statute indicting criminals because they all bought lawyers “who feed, fatten, and thrive on large fees from these despicable characters.” Heretofore, said lawyers had won their cases on “legal technicalities,” but Judge Lyle bragged that he was now ready for them in his courtroom, where the “weapons will be law books instead of machine guns.”
While all this was going on, Ralph, Jake Guzik, and Jake’s brother Harry were appearing before Judge Lyle on the vagrancy charge. Already convicted and sentenced to Leavenworth, Ralph was waiting for the appellate court to decide if he would have to serve his sentence. Lyle made so many intemperate remarks in their separate appearances before him that all three men asked for and received changes of venue. Still undaunted, Lyle boasted that with all the newspapers lining up to back him, his movement to rid Chicago of the “Capone men” could not be stopped. Temporarily it was, however, when the Illinois Supreme Court became involved in a case totally unrelated to them but directly related to the judge.
The unreasonable amounts Lyle had set for bail in previous cases were what brought him to the court’s attention. It ruled that such amounts were punitive and harmful to everyone from ordinary citizens to public enemies and thus could not be enforced. Nor could vagrancy be invoked simply because a judge made the vague and unspecified claim that the rule of law had broken down. The Illinois Supreme Court declared the vagrancy act unconstitutional because it wanted to enforce punishment not for what a person actually did but only for what he was accused of being.
The CCC rushed to Lyle’s defense with a statement for the newspapers that said there were certain historical times when “expediency, necessity, and public peace” trumped the rule of law. In “abnormal crime situation[s],” the normal application of the law would just not work. In other words, the CCC thought the law should be disregarded because “there is no other way to deal with a certain class of criminals than to break them to pieces or they will break you.” The general public, so used to the law being disregarded or bought out, seemed to agree.
Lyle’s fixation on Al Capone went back several years to 1928, when he ran against Big Bill Thompson in the mayoralty race and Capone let it be known that Lyle would get no support from him at the polls. Even though the judge claimed to be incorruptib
le, he knew he would have a difficult time without the Outfit’s money and the fear its goons instilled in voters. Indeed, he did have a difficult time because he lost the election, but he gained the energy and initiative to concentrate on Al Capone. In 1930, Lyle faced the difficulty of making a vagrancy charge stick, for police officials (no doubt those in the Outfit’s pay) continued to insist that Capone had stayed in Chicago for only five days, and then only long enough to cooperate with police in their investigation of Lingle’s murder. With straight faces, the police said they thought he was back in Miami, even though they and everyone else knew he was still in town.
While he was in residence at his Lexington Hotel headquarters, Capone did think briefly of calling Judge Lyle’s bluff by turning himself in. He assumed that Lyle would set an unrealistically high bail that he could count on being reversed, and even if he had to spend a night in jail, he’d be out the next day, free and clear because the vagrancy charge would not have been enforceable. He dismissed this plan after his lawyers sent an emissary from the Teamsters’ union, Michael J. Galvin, to Chief Justice John P. McGoorty of the criminal court to try to make a deal on behalf of “Al Brown” (his alias). In exchange for the vagrancy charge being dropped, Capone offered to end his attempts to control the labor unions not yet under his sway, but only if there would not be any more raids or other kinds of interference with his liquor business. He said if they accepted his proposal, he would leave Chicago for good and oversee all his interests from somewhere else, meaning Miami.
The judge called his offer “cool effrontery” and soundly rejected it. When McGoorty testified later before a grand jury, he said it would have been “unthinkable” to allow Capone to get away with dictating such terms. Because he had always “ruthlessly exterminated” anyone who opposed him, and because the only thing still in his way was the legal system, the judge warned that “the time has come when the public must choose between the rule of the gangster and the rule of law.”