Alphonse Capone

The backstory

The investigation

Capone kept no bank account and signed no checks, so Treasury investigators built their case from what he spent, including purchases, hotel bills and about $39,000 in telephone bills, according to Douglas O. Linder’s account of the trial.²⁴ Linder writes that President Herbert Hoover told Treasury Secretary Andrew Mellon, “I want that man Capone in jail.”²⁴ The investigation was carried out by the Bureau of Internal Revenue’s Intelligence Unit; Special Agent Frank J. Wilson sent progress reports on “the Capone investigation” to the unit’s chief, Elmer Irey, in March and April 1931.⁹ The FBI’s own history notes that gang violence in this period “was not within the Bureau’s investigative authority,” while the Treasury Department was developing the tax evidence.⁸

A key piece of evidence was a ledger from a gambling house, seized in a 1926 raid, which investigators traced to a cashier, Leslie Shumway, according to Linder.²⁴ In September 1930, Capone’s lawyer, Lawrence Mattingly, gave Wilson a letter conceding that Capone had taxable income; Wilson later testified that Mattingly told him, “This is the best we can do. Mr. Capone is willing to pay the tax on these figures.”¹⁰ The letter, which said it was based “upon information and belief only,” put his taxable income at not more than $26,000 for 1925, $40,000 for 1926 and $100,000 a year for 1928 and 1929.¹⁰

The indictments

A federal grand jury indicted Capone on March 13, 1931, for failing to file a tax return for 1924, and on June 5, 1931, returned a second indictment covering 1925 through 1929.²⁵²⁴ On June 11 he was also indicted on a charge of conspiracy to violate the Prohibition Act.²⁵ The second indictment charged in count 1 that for 1925 he had “a gross income of to wit, $257,286.98” and owed “a tax of, to wit, $55,365.25.”¹

In June 1931 Capone pleaded guilty to the tax evasion and Prohibition charges, according to the FBI.⁸ Linder writes that the plea was entered in expectation of a sentence of about two and a half years, and that in July Judge James H. Wilkerson refused to be bound, saying it was “utterly impossible to bargain with a Federal Court.”²⁴ Capone then changed his plea to not guilty.⁸

The trial

The trial began on Oct. 6, 1931, in federal court in Chicago before Judge Wilkerson.²⁵ Before jury selection, after learning that prospective jurors might have been approached with bribes, the judge exchanged his jury panel for another judge’s, according to Linder and the chronology on his site.²⁴²⁵ The National Archives notes that jurors’ names were printed in Chicago newspapers and that the judge kept the trial short and kept the jury confined at night.⁵

The National Archives describes the government’s approach: prosecutors showed Capone’s lavish spending as evidence of a large income and argued that he knew he was required to pay federal income tax.⁵ In the excerpts of the transcript that survive in published form:

• Gambling profits. Shumway testified that he worked figuring the betting sheets at a gambling establishment that moved among several locations, that he took orders from its managers, and that he saw Capone there “in the office.”¹¹ Fred Reis, a cashier at a Cicero gambling house called the Subway in 1927, testified that he bought cashier’s checks with the house’s profits, and estimated the 1927 profits at “around $150,000.”¹² Reis testified that Capone’s associate Jack Guzik told him whom to give the money to, and the court noted evidence that Capone called Guzik his “financial secretary.”¹²
• Spending. Morrisey Smith, a clerk at the Metropole Hotel, testified that Capone stayed there under the name “Mr. Ross” and paid his bills in cash, in “hundred dollar bills, sometimes five hundred dollar bills.”¹³ A Western Union manager identified a $1,500 money transfer sent on July 2, 1928, to “Mr. Al Capone” at Palm Island, Miami Beach; Capone’s lawyers later agreed that the transfers were sent when and where the government said.¹⁴ Parker Henderson testified that Capone gave him the money for the binder on a house on Palm Island in 1928 and that the property was put in the name of Capone’s wife.¹⁵
• The Mattingly letter. Over the defense’s objection, Judge Wilkerson admitted the letter only “to show that the statement was made,” instructing that its contents were not proof of the facts in it.¹⁰

The defense called bookmakers to testify that Capone was a heavy bettor on horse races who lost money.²⁴ Milton Held testified that Capone lost “about $12,000” with him in 1924 and 1925, which he later called “just an estimate.”¹⁶ In closing, defense lawyer Albert Fink called the government’s evidence “chaff” and urged the jury not to convict merely because Capone was “a bad man,” according to Linder.²⁴

The verdict and sentence

The jury found Capone guilty of the felonies charged in counts 1, 5 and 9, willful attempts to evade income tax for 1925, 1926 and 1927, and of the misdemeanors in counts 13 and 18, failing to file returns for 1928 and 1929.¹ It found him not guilty on the other counts and on the separate one-count indictment for 1924.¹ The verdict held by the National Archives is dated Oct. 17, 1931.⁵ The jury deliberated about eight hours, Linder writes.²⁴

Judge Wilkerson sentenced him on Oct. 24, 1931.³ The sentence was 11 years in federal prison and a $50,000 fine, and he was ordered to pay court costs and $215,000 in back taxes plus interest.⁷⁸²⁵ A six-month sentence for contempt of court, imposed earlier in 1931, ran at the same time.⁸ He was held in the Cook County Jail while he appealed.⁸

The appeal

On appeal, Capone argued that the felony counts charged him only in the general words of the statute without saying what acts made up the attempt to evade the tax.¹ The U.S. Court of Appeals for the Seventh Circuit, in an opinion by Judge Sparks for a panel of Judges Alschuler, Evans and Sparks, held that the counts were sufficient and that the objection was “one of form rather than of substance.”¹ It noted that the defense could have asked for a bill of particulars and wrote that “appellant made no such request, and he now has no reason to complain.”¹ It found no error on the misdemeanor counts and affirmed the judgment on Feb. 27, 1932.¹ The Supreme Court denied review on May 2, 1932.²

The earlier convictions

On May 17, 1929, Capone and a bodyguard were arrested in Philadelphia for “carrying concealed deadly weapons,” and both were sentenced to a year in prison within 16 hours, according to the FBI.⁸ Eastern State Penitentiary says the weapon was an unlicensed .38-caliber revolver and that he served eight months of the sentence there; he had first been held at the county prison at Holmesburg.²⁹²⁵ He was released early for good behavior in March 1930.⁸

In March 1929, after his lawyers said he was too ill with bronchial pneumonia in Miami to answer a federal grand jury subpoena, he testified and was arrested for contempt of court as he left the courtroom, according to the FBI.⁸ On Feb. 28, 1931, he was found guilty in federal court on the contempt charge and sentenced to six months in the Cook County Jail.⁸

Personal backstory

Early life

Capone was born on Jan. 17, 1899, in Brooklyn, New York, to Italian immigrant parents.²⁵²⁸ His parents were Gabriele and Teresina Capone; his father was a barber and his mother a seamstress, and the family lived in a tenement, according to History.com.¹⁸ The FBI says he quit school after the sixth grade and joined a street gang.⁸ History.com says he left school after a principal beat him for striking back at a teacher.¹⁸

While working as a bartender and bouncer at a Coney Island saloon, he was slashed in the face in a fight, leaving scars that History.com says inspired the nickname “Scarface.”¹⁸ Johnny Torrio, who ran a gambling operation near his Brooklyn home, became his mentor.¹⁸

Marriage and Chicago

He married as a teenager, weeks after the birth of his son.¹⁸ After a period working as a bookkeeper in Baltimore, he moved to Chicago in 1920, when his father died and Torrio invited him to join his business there, according to History.com.¹⁸ When Torrio retired in 1925, Capone took control of the organization and expanded its bootlegging operations.²⁵ Britannica describes him as dominating organized crime in Chicago from 1925 to 1931.²⁸ In 1928 he bought a winter home on Palm Island, near Miami Beach.¹⁵ In April 1930, the Chicago Crime Commission put him first on its first list of public enemies.⁵

Deirdre Bair’s 2016 biography describes a household in which his wife and his mother and sister were at odds, according to a review in Publishers Weekly.²⁶

Illness in prison

Capone began serving his sentence at the federal penitentiary in Atlanta in May 1932 and was transferred to Alcatraz in August 1934.²⁵²² On Alcatraz he was registered as No. 85.²² In June 1936 another prisoner stabbed him in the back with barbershop shears, inflicting minor wounds, the Mob Museum reports.²²

The FBI’s history states that he was “suffering from paresis derived from syphilis” and had “deteriorated greatly during his confinement.”⁸ The Mob Museum writes that four years into his term the effects of improperly treated syphilis were taking a toll, and that he was treated in the prison hospital until he was moved to the federal prison at Terminal Island in Los Angeles in January 1939.²² The sources reviewed for this page do not include his prison medical records or say when or by whom the diagnosis was made.

Release and death

He was released on Nov. 16, 1939, after serving seven years, six months and 15 days and paying his fine and back taxes.⁸ He went directly to a hospital in Baltimore for treatment, according to the FBI; the Mob Museum names it as Union Memorial Hospital.⁸²² In 1946, the FBI says, his physician and a Baltimore psychiatrist concluded that he “had the mentality of a 12-year-old child.”⁸ He lived in seclusion with his family at his Palm Island home, where he died on Jan. 25, 1947, at age 48.⁸²⁰