Twenty-Seven

October 1931

As the nation followed every twist and turn of Capone’s trial, other gangsters quietly carried on his work.

On October 8, one of Capone’s lieutenants—handsome thirty-five-year-old Nick Juffra—stepped out of his apartment building in placid Jackson Park, just up the block from where Torrio had been shot.

More than seven years earlier, Juffra had been arrested with Torrio in the Sieben Brewery raid, after Dean O’Banion double-crossed his Italian rival.

At the time, “Juffra was the most persistent offender of all the early beer runners,” according to sociologist John Landesco. “He had been arrested twenty-four times between the advent of Prohibition and the Sieben Brewery case.” On one of those busts, Juffra had been caught hauling beer with Joe Fusco and Bert Delaney, back before both men became heads of Capone’s beer empire.

Since then, Juffra had managed to stay out of custody, and gave every appearance of having gone legit. But the Tribune later pegged him as “the head of Al Capone’s beer delivery service,” where he worked under his longtime compatriot, Joe Fusco. That, and the earlier arrest, earned Juffra the distinction of being named along with Capone in the massive Prohibition conspiracy indictment.

As Juffra exited his building, he ran into one of his neighbors—Eliot Ness, a few blocks south of the Paxton Avenue apartment he shared with Edna. Ness had brought two Untouchables with him, and together they placed Juffra under arrest. They hauled the bootlegger back to the Federal Building and left him locked up despite his protests.

“What’s the idea?” Juffra complained. “I’ve been going straight for the last eight years.”

Ness knew better.

Eager to hit the mob however he could, Ness would lock up any Capone man crossing his path, all the better to put the gang on the spot and stretch its already thinning resources. This harassment would continue after Juffra’s release, when the hood was arrested again and turned back over to the Untouchables. Federal officials considered deporting him to Italy.

To the Tribune, Ness gave a brief statement explaining Juffra’s arrest, mentioning the bootlegger’s partnership with Joe Fusco. But he failed to comment on events occurring elsewhere in the Federal Building, where the fate of his nemesis hung in the balance.

Whatever his thoughts on the court case, Ness kept them largely to himself; his memoir of the Capone investigation skips over the trial in a single sentence. And this silence speaks volumes for a man who, though often generous with giving credit to others, usually avoided criticizing anyone.

Relations between the Intelligence Unit and the Prohibition Bureau had long been strained, poisoned by years of mutual suspicion and jealousy.

“An intense bitterness developed between the two branches of the Treasury Department,” wrote Assistant Attorney General Mabel Walker Willebrandt in 1929, “and it was not an uncommon thing for agents of the Intelligence Unit . . . to be ‘shadowed’ by agents of the Prohibition Unit and their friends.”

After the dry force became part of the Justice Department, the Treasury men increasingly took offense at news coverage of their colleagues. Even before Ness’s name made headlines, the tax men working the Capone case feared losing credit for their work to the Prohibition Bureau.

“By the way,” wrote G. A. Youngquist to Attorney General William Mitchell even before the Untouchables began raiding, “some of the Special Agents of the Bureau of Internal Revenue who have been doing very effective work in Chicago are resentful over the appearance of newspaper statements to the effect that the work has been done by Special Agents of the Department of Justice. I told Mr. Irey that I was sure no such statement had been made by you and that it was merely an inference of the reporters.”

The sudden fame of the Untouchables can only have added to this resentment, but Ness always made sure to give credit where credit was due. Although his team worked independently of the Intelligence Unit, both groups stayed in contact, and Ness knew Frank Wilson well enough to list him as a character reference on a future job application. The two men enjoyed a cordial relationship for years, as Ness praised Wilson’s work while often downplaying his own.

A decade after the trial, Ness described Wilson as “the brains behind the successful drive on the Capone gang,” while the former tax investigator complimented the Untouchable on his own “excellent” work, adding that it deserved its nationwide publicity.

Only later, after Ness became famous as a television icon, would Wilson claim the Untouchables had contributed nothing worthwhile to the Capone investigation.

Al Capone strongly discouraged his wife, sister, and mother from attending the trial. They sneaked in a few times anyway, sitting in back and slipping out fast at the end of sessions.

Mae abandoned Palm Island for Prairie Avenue, with Sonny along, though the boy would miss the start of school. They intended to make Chicago their home through any appeals and, if Al was convicted, see where he’d serve his sentence—if nearer Chicago than Florida, Sonny would go to school in the former, otherwise mother and son would return to the latter, making prison visits from Miami.

On October 14, a surprise visitor appeared in court: film star Edward G. Robinson, who lately made his living playing Capone clones onscreen. According to the Herald and Examiner, Robinson had come “to give Snorky a few pointers on how a gangster acts.” He’d arrived on the first day of Capone’s defense, as courtroom observers awaited whatever strategy Ahern and Fink had cooked up.

Earlier in the trial, the press intimated Capone’s lawyers would demonstrate the government had targeted their client unfairly, while allowing other “well-known Chicagoans” to avoid prosecution by settling their tax debts.

“This argument,” wrote the Herald and Examiner, “is based on the contention it is not the general practice of the Department of Internal Revenue to prosecute tax delinquents when there is a possibility of settlement without court action.”

That, of course, had always been Elmer Irey’s policy; the Bureau of Internal Revenue gave many wealthy tax cheats the opportunity to settle without being prosecuted. When Capone sought the same treatment, Ahern and Fink planned to show, this “statute was used virtually to effect an entrapment when his offers were rejected.”

Yet for reasons that remain unclear, the defense chose not to pursue this shrewd strategy. Nor did they attack the prosecution’s predominantly circumstantial evidence.

Instead, Ahern and Fink based their entire approach on claiming Capone lost most of his money gambling. This made little sense; gambling losses were only deductible from winnings—and only in states where gambling was legal. Capone, it seemed, could be taxed on income from other people’s illicit bets, but couldn’t claim deductions from any illicit bets he happened to make himself.

To have any chance of success, the defense team needed to produce betting slips or other concrete proof of each loss—evidence they did not have. So they relied instead on an array of witnesses, mainly bookies, to give ballpark estimates of how much Capone had lost over the years. As the testimony dragged on, Damon Runyon happily ceded his own blue ribbon for “world’s worst horse player to Mr. Alphonse Capone.”

The Mattingly letter asserted Capone earned no more than $3,900 in 1924, but bookie Milton Held estimated Al lost $8,000 to $10,000 to him that year alone. Another bookie put Al’s losses at no less than $14,000 during that time. Subsequent years reported by various shady witnesses were all over the map, adding up to more than $200,000 all told.

Asked if he ran an Outfit club, a North Side bookmaker responded, “I am running the club for ‘Bugs’ Moran and his associates.”

“Who,” asked the prosecution, “are the associates?”

“I don’t know,” said the witness. “I guess they’re all dead!”

A flurry of laughter, and defense objections, followed.

Coprosecutor Dwight Green wondered if these bookies had been called to the Lexington of late, to discuss their testimony with Capone and his legal team. Yes, they had. But that didn’t mean they could keep their stories straight. These men functioned outside the law, betting slips destroyed, account books nonexistent. Their testimony was so much air—not even hot air, just foul.

“You said Capone lost between $20,000 and $30,000 in 1926,” Green asked one bookie. “Could you make it $40,000?”

“Y-e-s,” the witness said, “maybe $40,000.”

“How about $50,000?” Green asked, as if this were an auction.

“Well,” the witness said with a smile, “I guess not $50,000.”

Wilkerson couldn’t help interrupting: “Do you know what it is to remember anything?”

“I never kept no books,” the bookie replied.

None of this served to exonerate Capone. If anything, it only drove home the prosecution’s central argument—that the defendant was recklessly rich.

Midway through the morning session, the defense took a break from bookies and called Peter P. Penovich Jr., the much-mentioned Hawthorne Smoke Shop manager. He’d also been on the government’s witness list but hadn’t been called.

After Penovich was sworn in, Fink produced a handwritten document first introduced during Leslie Shumway’s testimony, probably a page from the all-important ledger. He described it as “apparently a list of the owners of this gambling house . . . with amounts set opposite their respective names, from which it can be ascertained exactly, the percentages in which they owned the business.” Penovich identified the handwriting on it as his own.

Much of the government’s case depended on proving Capone’s ownership of the Hawthorne Smoke Shop. If this list did not include Capone—and it almost certainly didn’t, since his surname appeared nowhere in the ledger—doubt might be sown about the defendant receiving any income from there.

But Fink did not read the list into evidence. Instead, he began asking Penovich about his secret testimony before the grand jury. The prosecution immediately objected, on grounds such testimony was confidential.

“Is he trying to impeach his own witness?” asked assistant prosecutor Samuel Clawson.

“I don’t know what the purpose of it is,” the judge said.

Objection sustained.

Fink tried and failed to explain himself, then turned Penovich over for cross-examination. Clawson’s questioning immediately zeroed in on another page from the ledger—the one first catching Wilson’s eye with the tantalizing notation: “Frank paid $17,500 for Al.”

That page also included a list of names and initials next to large dollar amounts, two entries marked “Paid.” Under questioning from Clawson, Penovich admitted writing the list, but denied disbursing any of the money. Clawson pressed him on one item in particular: “J & A,” apparently the recipient of $5,720.22. Capone watched intently. Although Penovich never said what “J & A” stood for, Clawson’s inference was clear—“J” for Jack Guzik and “A” for Al Capone.

Clawson began asking questions about the Hawthorne Smoke Shop—how long it had existed, what Penovich’s duties had been, to whom did he report.

“Frankie Pope was my boss,” Penovich said, “and so was Ralph Capone.”

How did Penovich know to take orders from Pope?

“Ralph told me that there would be a different disposition of the money,” Penovich said, “and to go along, and that he would take care of me.”

How had Penovich become connected with the Smoke Shop in the first place?

Penovich explained he’d previously had a gambling joint in “a bad location,” and had gone to Ralph in search of a better arrangement.

“Why did you speak to Ralph?” Clawson asked.

“Because I understood Ralph was the boss,” Penovich said, “and he could do the fixing for me.”

Clawson made sure the jury got that: “You understood he was the boss?”

“Yes sir.”

“And he could do the fixing?”

“In Cicero.”

“Fixing with whom?”

“With the powers that might be in a position to let me go along and run without being molested.”

“What powers?”

“Political powers, the police departments, anybody that might be in a position to stop me.”

Penovich couldn’t say why, exactly, he’d had such faith in Ralph. “Well,” the witness said, “he seemed to be prosperous, and he was catered to.”

“Catered to by whom?”

“Well, every place he went he was welcomed; he was pointed out . . . theaters, cafés, places of amusement.”

Clawson asked whether “there was an organization or syndicate in control of Cicero at that time, and of its gambling activities.”

Penovich said no.

Clawson asked if Penovich had cut a deal “with Al Capone to open up at the Smoke Shop because . . . you had to make certain arrangements for a cut with the organization or gang that had control of the gambling interests out in Cicero?”

Ahern objected, and Wilkerson, after some hesitation, sustained. Clawson had strayed from the rules of cross-examination. If the government wanted to question Penovich on these matters, he should have been called as a witness.

Penovich never directly implicated Al Capone. But by pinning so much on Ralph, the Smoke Shop manager only added to the pile of circumstantial evidence showing both Capone brothers involved in a profitable criminal enterprise. One lawyer would later call Penovich “a better witness for the government than any the government put on.”

How did this help the defendant’s case again . . . ?

The next day, October 15, the defense called one last bookie, whose testimony boosted Capone’s gambling losses (and his apparent income) by at least a third. Then Fink questioned Elmer Irey, apparently trying to show Capone had attempted to pay his taxes immediately after leaving the Pennsylvania prison. But Irey said little that would help.

Finally, Fink put Dwight Green on the witness stand to demand he reveal Lawrence Mattingly’s confidential grand jury testimony—something the prosecutor could not legally do.

“That is not a proper question,” Wilkerson said.

“Then,” Fink declared, “I ask your honor to direct the United States attorney to produce Mattingly’s grand jury testimony.”

Before the judge replied, he sent the jury out of the room so they wouldn’t hear the rest of this farce.

“I have never heard of such a request,” Wilkerson told the defense. “Why haven’t you called Mattingly?”

Rather than explaining why they hadn’t, Ahern asked the judge “to put Mattingly on the stand, so that we can cross-examine him.”

Wilkerson refused.

Ahern then moved for a directed not-guilty verdict.

Motion denied.

Fink tried to have the indictment thrown out as unconstitutional, arguing the government had never proven an overt act of evasion on Capone’s part.

“Well,” Wilkerson said, “I think I will hold the act constitutional.”

At long last, Ahern demanded all charges before 1928 be dismissed because they fell outside the three-year statute of limitations for income tax evasion. In response, coprosecutor Grossman cited rulings upholding the convictions of Ralph Capone and another defendant as proof the six-year rule applied.

Wilkerson sided with the prosecution. But Ahern was right and Grossman wrong. Ralph Capone was convicted of tax fraud, not just evasion, and the law specifically reserved the six-year limit for those who defrauded the government.

The other case awaited a final ruling from the Supreme Court.

That same afternoon, closing arguments began with prosecutor Grossman emphasizing Capone’s high-roller behavior, which so resonated with the jury.

“Capone himself produced witnesses to show that he got revenue in these years,” Grossman told the jury. “His defense witnesses said he lost large sums in race bets in four of those years. These losses totaled $217,000.”

Where had Capone gotten all this money?

“At the start,” Grossman continued, “we find a man living on a fine estate in Florida, spending money like a baron and with the lavishness of an Indian prince. We have heard of jewels and fine furnishings—everything bought with cash.”

The defense witnesses, he claimed, had only proven the government’s case.

“All through this testimony, gentlemen,” the coprosecutor said, “you have heard certain names mentioned together—Al Capone, Jack Guzik, Charles Fischetti, Ralph Capone, and Pete Penovich. They all constitute one gang.”

What did that have to do with Capone’s income taxes?

“It means that when one embarks on a life of crime, one crime leads to another. The watchword of the gang was ‘Sign nothing.’ Conceal your name and conceal your income. . . . Gentlemen, I think the evidence has shown beyond all possibility of a doubt that this defendant had an enormous income. All that you can do is find him guilty.”

The defense had their turn the next day.

Fink went first, praising Capone as beloved by his men, generous, and trustworthy (if you were a bookie).

“This does not fit in with the government picture of a miserly effort to evade income tax,” Fink said. “A tin horn and a piker might try to defraud the government of such a tax, but not Capone.”

The defense attorney spoke for nearly two and a half hours, drawing on his knowledge of tax law to carefully dissect the prosecution’s case. He pointed out, for instance, that Capone could not be found guilty of evasion simply because he hadn’t paid any taxes.

“If I were sick on the day my income tax was due,” Fink said, “and failed to make a return, that would be no crime.”

Nor, he argued, should all the evidence of lavish expenditures count as proof of taxable income.

“How do you know that the money spent wasn’t borrowed?” he asked.

The defendant, Fink insisted, “like many other men,” had believed illegal income was not taxable.

“Suppose he had been advised of that,” Fink said, “and that just as soon as he discovered the contrary he went to Washington and hired an attorney and tried to pay what he owed. And why didn’t they let him pay it instead of using the evidence to try to put him in jail?”

Fink insisted the defendant was not being prosecuted because he’d attempted to cheat the government, but merely “as a means to stow Al Capone away.”

“If the latter,” Fink said, arms flailing, “don’t you be a party to it. You are our only bulwark that can resist oppression in a time of public excitement. Judges cannot do it.”

Looking at a wall mural of the Founding Fathers forging the Constitution, Fink told the jurors, “The fathers of this country put this power in the hands of the people.”

After lunch, Ahern picked up, pounding his fist on the jury rail as he said, “The government has sought by inference, by presumption and by circumstantial evidence to prove this defendant guilty. It has sought to free itself from the law, to convict him merely because his name is Alphonse Capone.”

Why had the government gone to so much trouble to convict a man on such scant evidence?

“Because Capone has grown into a mythical Robin Hood,” Ahern said, “whose name is bandied all over the nation.”

That Capone was a spendthrift was all the government had proved.

“The government, too,” the codefender insisted, “is guilty of profligacy by bringing these witnesses here to recite their inferences. It is spending thousands of dollars for that purpose, and in these depressed times this money could better be spent on soup kitchens.”

The jury, Ahern said, was “the only barrier between this defendant and the encroachment of government.” Did he imagine these Depression-era jurors would show any sympathy for the tax problems of rich people?

Ahern was more effective when addressing the evidence, pointing out that Fred Ries’s cashier’s checks had already been used against Guzik.

“How many defendants,” Ahern cried, “will these checks convict?”

But he failed to challenge the check with Capone’s name on it, letting that damning signature stand.

He could have explored how friendly to forgery a penciled signature might be, or perhaps traced the check’s provenance as it passed through accounts connected to E. J. O’Hare and Frank Nitto, before reaching government agents intent on putting Capone away.

Strangely, neither Ahern nor anyone else would ever seriously question that one unusual signature written in lead—maybe not the Chicago typewriter variety, but destructive in its own way.

* * *

The next morning, the courtroom was packed for what everyone knew would be the last day of the trial. Impeccably groomed, jovial but anxious, Capone wore a new green suit as if taking to heart Ahern’s Robin Hood comparison.

George E. Q. Johnson rose to give the final closing statement—his first remarks to any jury since becoming U.S. attorney. Capone made a show of ignoring him, pretending to read notes and documents handed him by his lawyers.

“Mr. Johnson was earnest,” the Tribune reported, “so much so that he was almost evangelical at times, clenching his fist, shaking his gray head, clamping his lean jaws together as he bit into the evidence and tore into the defense theories of its meaning and lack of strength.”

Johnson, in his pinched, reedy voice, preached the gospel of income tax. If the American people paid taxes only when the government came after them, the country would collapse—its military disbanding, institutions vanishing, and courts “swept aside.”

“American civilization will fall,” Johnson insisted, “and organized society will revert to the days of the jungle, where every man will be for himself.”

Who was this creature about whom the defense had woven “a halo of mystery and romance,” who lavishly wasted some half a million dollars?

Johnson wondered, “Is he the little boy . . . who succeeded in finding the pot of gold at the end of the rainbow, that he has been spending so lavishly, or maybe, as his counsel says, is he Robin Hood?”

Johnson indicated the plump man in green.

“You will remember how Robin Hood in the days of the barons took from the strong to feed the weak and the starving peasants. . . . But was it Robin Hood in this case who bought $8,000 worth of diamond belt buckles, to give to the unemployed? Was it Robin Hood in this case who bought a meat bill of $6,500? Did that go to the unemployed?”

No, it had gone to the house on Palm Island. Had he bought “$27 shirts to protect the shivering men who sleep under Wacker Drive at night? No.”

Defense insinuations had Ralph Capone, not Al, present during Reverend Hoover’s raid on the Hawthorne Smoke Shop. But, Johnson asked, “Could anyone forget the hulking form of this defendant with the flaming scars upon his cheek? If it was Ralph Capone, if there was any question about it, why was not Ralph Capone called as a witness?”

Johnson asked the jury to consider the case in its entirety.

“Take every fact and circumstance, and consider it, and see how it keys into the other, and then when you see that, you will find that every page of this record cries out the guilt of this defendant.”

Every witness testimony for Capone, the prosecutor reminded them, came “from the lips of a man who is violating the laws of the State of Illinois . . . so shifty they could not look you in the eye.”

Johnson asked the jury to remember the countless men and women paying taxes on hard-earned incomes of barely more than $1,500 a year. He compared these $1,500 men and women who helped their government in a “time of national deficit” to a defendant whose “extravagances” testified to the wealth he so selfishly hoarded to himself.

This case was, as the defense itself had indicated, historic. But people would not remember it, Johnson declared, because the defendant was Al Capone.

“They will remember it for a more important reason,” he told the jury. It would establish “whether any man can be above the law, whether any man can so conduct his affairs that he can escape entirely the burdens of Government; and that is the record, gentlemen of the jury, that your verdict will write in this case.”

He thanked the jury and took his seat.

Arthur Prochno and his fellow jurors found the various closing arguments thrilling, but Johnson’s most of all, because it signaled the trial had reached its conclusion.

Almost the conclusion, as Wilkerson took an hour charging and instructing the jury.

“You are the judges of the weight which is to be given to the testimony of the witnesses who have appeared before you in this case,” Wilkerson intoned. “You have had many witnesses here who have testified from the witness stand, men from all walks of life. You have had government agents, ministers of the gospel, business men and other classes of witnesses.”

That last seemed a veiled slight at the defense, whose parade of bookies belonged in a class all its own.

Other parts of Wilkerson’s statement favored the prosecution. He talked at length about how the lack of any concrete proof of Capone’s income had forced the government to rely on circumstantial evidence. This reinforced the idea that Capone had something to hide, establishing the willful intent necessary to convict him of felony tax evasion.

“Now,” Wilkerson said, “in this case . . . you may consider all the facts and circumstances which have been shown here in evidence. You may consider the evidence relative to the activities of the defendant in the places in Cicero. You may consider the evidence relating to the living by the defendant at the two hotels, the Metropole and the Lexington; the manner in which he there lived.”

This included “moneys which were transmitted from Chicago to the defendant in Florida,” and “expenditures of money by the defendant in Chicago and in Florida.” Evidence of the possible business connection between Capone and Guzik was fair game, too.

“You must look at the evidence as a whole,” the judge emphasized. “You must consider each fact in relation to all of the other facts, and so viewing the case arrive at a conclusion whether each one of the essential elements of these indictments . . . have been established to your satisfaction beyond a reasonable doubt.”

When the judge had finished, the defense attorneys offered a few minor quibbles, but never seriously questioned his impartiality. One observer took this peaceful acceptance as “an unusual tribute which bespoke Judge Wilkerson’s ability.”

The jury proceeded into deliberation with various notions about the appropriate sentences for Capone’s crimes. Other defendants had been jailed from two-and-a-half to five years for tax offenses. Although Capone faced a maximum of thirty-two years in prison, the jurors mistakenly believed they could send him away for up to seventy-two years. Some were ready, even eager, to “give him the limit”—nearly three-quarters of a century for not paying his taxes.

According to juror Prochno, who gave his story to the Tribune half a decade later, the twelve men sitting in judgment of Capone had soon broken down into two distinct factions—one intent on convicting Capone on all counts, regardless of what might be said in court; the other with no illusions about the defendant, but wanting to make at least some effort to weigh the evidence.

As one juror remarked, “A quick verdict would look bad for us. The public might think we framed and railroaded him.”

Prochno said he became leader of this second faction. Once the jurors began deliberating, and the first two ballots revealed an even split between conviction and acquittal, those set on finding Capone guilty began lobbying Prochno to wrap things up.

“You’re not dumb,” one said. “You know Capone is a bad man. The papers for years have been full of his activities, and now that we have the chance, let’s give him the limit. All you have to do is to give the word and it will all be over.”

Another appealed to Prochno on grounds of shared ethnicity and class, suggesting Capone deserved harsh treatment because he was Italian and Catholic.

“After all,” this juror said, “he’s only a dago.”

The twelve passed around exhibits and debated what they might mean. But the substance of their deliberations boiled down to a question Chicagoans—and so many Americans—had wrestled with throughout Capone’s rise to infamous fortune: Was this man, this bootlegger, pimp, and killer, really all that bad?

“He’s no good,” one juror said. Hadn’t the newspapers said he ran brothels and gambling joints? Another replied, “But he’s done good things, such as supporting soup kitchens and helping the poor.”

Hours passed, and the jurors grew hungry.

“We asked for sandwiches, but didn’t get them,” Prochno recalled. Some jurors resented being starved into a verdict—even soup kitchens provided sandwiches.

Their hunger only added to the growing sense of frustration and unease—they’d been sequestered for days, unable to see their families or go to church, their reading material strictly censored. No deliberations could be held on Sunday, so if they deadlocked tonight, they’d remain confined until Monday at the earliest.

“We wanted to get home,” Prochno wrote.

They voted to acquit Capone on the first indictment, covering 1924, which Johnson had pushed through in secret to skirt the statute of limitations, because they all agreed the prosecutors had placed little emphasis on it. Jurors determined to convict used that vote as a bargaining chip, convincing the others to come around on the second indictment.

But the jury didn’t vote to convict on all counts. Instead, Prochno said, “we agreed to take the first counts in each year and call it quits.”

This produced a somewhat confusing verdict, convicting Capone of misdemeanors for failing to file a tax return in 1928 and 1929, but acquitting him of felony tax evasion for the same years. In their haste, the jurors kept making mistakes, their foreman filling out the verdict incorrectly and having to start over. Another juror belatedly realized they’d convicted Capone of two misdemeanors while acquitting him of several felonies.

“He’ll only get ten or twelve years,” the juror complained. “I want to give him more.”

The others overruled him; they wanted to go home. Five years later, Prochno still seemed confused.

“I really believe the final intent was to convict Capone on two, not three, felony counts,” he said, “and two misdemeanors.”

But no matter—the jury had decided.

All the painstaking detective work, legal wrangling, and courtroom drama amounted to nothing—the jurors voted to convict essentially at random, giving more thought to the defendant’s sordid reputation than the finer points of income tax law.

And if the Prohibition case had gone to trial instead of the tax one, the result would almost certainly have been the same, though the law mandated a much lighter punishment for those charges.

On the night of October 17, 1931, Al Capone was finally defeated at the hands of twelve tired, hungry men, who’d probably made up their minds before setting foot in Judge Wilkerson’s court.

From the jury room, at 9:30 P.M., applause said the twelve had finally reached their decision.

Capone and attorney Fink were at the Lexington Hotel when news of a verdict came. A few minutes later, the defendant darted into a waiting limo, a reporter ready.

How was he feeling?

Capone smiled—the lengthy deliberation could mean good news. “I’m feeling fine,” he said.

Any comment?

“Not a thing now,” he said, climbing into the comfy backseat of the humming vehicle, about to head north on Michigan Avenue.

Within fifteen minutes, Capone had arrived. The defendant took his usual seat and sat mopping his brow with a silk handkerchief, but smiling. He and his attorneys chatted casually as the jurors filed in.

The twelve men looked weary, solemn. Capone watched, curious but restrained. The judge emerged from chambers and took the bench, getting right to it.

“Have you arrived at a verdict?”

The foreman nodded and handed a sheaf of papers to a bailiff, who passed them to the court clerk.

The clerk broke the pin-drop silence, clearing his throat. “We, the jury, find the defendant not guilty as charged in Indictment No. 22852 . . .”

Capone’s big face split in a smile, for half a moment.

“. . . and we find the defendant guilty on counts 1, 5, 9, 13, 18, and not guilty on 2, 3, 4, 6, 7, 8, 10, 11, 12, 14, 15, 16, 17, 19, 20, 21 and 22 in Indictment No. 23232.”

Capone’s grin turned sick, his gaze lowering. He spoke to his lawyers, who then got up and went to the bench. Capone’s easy smile returned, his poise, too.

A reporter behind him asked, “How are you feeling?”

As he had outside the Lexington, before he’d made the ride to court, Capone said, “I’m feeling fine.”

But he had nothing else to say—his attorneys would do his talking now. He was looking at a possible seventeen years behind bars—five years each for three felonies, one year for each misdemeanor, and $50,000 in fines. The final sentence, after a week of review, would be Wilkerson’s.

George E. Q. Johnson wasn’t in court, but when reached told the Tribune, “The verdict speaks for itself.”

The federal prosecutors wanted Capone sent immediately to Leavenworth. His lawyers demanded bail while their client’s appeals were in motion. According to the Herald and Examiner, courtroom observers predicted Capone would probably end up serving around five years in prison—no more than nine or ten.

But Johnson, and the civic leaders who had supported his antigangster campaign, might not get their wish to put Capone behind bars before the start of the 1933 World’s Fair. Appeals could delay the start of his sentence for up to two years.

“Should this prove the case,” said the Herald and Examiner, “the Capone gang is assured of adequate leadership. Al Capone himself will be able to keep the reins until Frank Nitti . . . is out of prison. Nitti will then be in a position to carry on for Al.”

Meanwhile, the feds undertook a civil suit to seize Capone’s assets for unpaid taxes. A $137,328 lien was put on his Chicago and Florida homes (though he legally owned neither).

“By the time the government finishes its collection,” wrote the Herald and Examiner, “Al may be stripped of all his personal property.”

On Saturday, October 24, an anxious Capone arrived at his sentencing hearing, all alone in a putrid purple suit. He sat slumped, waiting for Ahern and Fink, and his mood lightened when they showed. Shortly, Judge Wilkerson emerged from his chambers.

The tension in the courtroom was only heightened as the judge said flatly, “Let the defendant stand before the bar.”

Capone rose and lumbered forward, his attorneys remaining seated. A U.S. marshal and the entire prosecution team met him at the bench. The Herald and Examiner found the once “fearless gangster” droop-shouldered and beaten-looking: “a picture of abject helplessness.”

In a courtroom crowded but millpond still, Wilkerson read the income tax offenses and their maximum penalties. Capone glanced at Johnson and his other adversaries with a forced half smile, hands clasped behind him, a white bandage (as the Trib noted) “around a cut on his trigger finger.”

“It is the judgment of the Court in this case,” Wilkerson said, “that on count one of the indictment, the defendant is sentenced to imprisonment in the penitentiary . . . for a period of five years, and to pay a fine of ten thousand dollars, and to pay all costs of prosecution.”

Capone took that stoically, as did his attorneys—five years was what they had expected, any other sentences probably running concurrently.

“On count five of the indictment,” the judge said, “the defendant is sentenced to imprisonment in the penitentiary . . . for a period of five years, and to pay a fine of ten thousand dollars, and to pay the costs of the prosecution.”

Wilkerson continued: “On count nine of said indictment, the defendant is sentenced to imprisonment in the penitentiary . . . for a period of five years, and to pay a fine of ten thousand dollars, and to pay the costs of prosecution.”

Capone listened intently.

“On each of counts thirteen and eighteen of said indictment,” Wilkerson continued, “the defendant is sentenced to imprisonment in the county jail . . . for a period of one year, and to pay a fine of ten thousand dollars, and to pay the costs of the prosecution.”

The sentences on the first and fifth counts would run concurrently. But the rest would “be consecutive and cumulative.”

Finally, Wilkerson said, “The result is, that the aggregate sentence of the defendant is eleven years in the penitentiary, and fines aggregating fifty thousand dollars.”

Fink asked, “Eleven years, did you say?”

“Yes.”

Capone wore a poleaxed expression—clearly he’d expected a lighter sentence. His attorneys seemed similarly stunned.

Ahern said, “Can’t you have the misdemeanor counts run first, your honor?”

“No,” the judge said. “The order will stand.”

The judge refused a motion for bail, pending an appeal. “The defendant is remanded to the custody of the United States marshal.”

Capone’s attorneys argued with the judge—denying their client bail meant he’d be sent to Leavenworth immediately!

“You have not the power to hold this man,” Fink insisted, “to deny bail when he is making his appeal. . . . This will mean the defendant will go to Leavenworth. Your honor might permit keeping this defendant here until Monday at least.”

When Wilkerson refused, Ahern heatedly maintained the judge was not within his rights to do this, even suggesting the jurist go to his chambers and check his law books.

An angry Wilkerson said, “You cannot undertake to instruct this court—that is all.”

Then the marshal gestured at Capone “to come along.”

The prisoner went along.

In the corridor, reporters flocked for a quote.

“Well, I’ll get a lot of time off for good behavior,” Capone said, working to stay jovial.

Then came a deputy collector of Internal Revenue, who gave Capone a notice of the tax lien on everything he owned. An unhappy Capone, accompanied by deputy marshals and an Intelligence Unit agent, was hustled out.

“It’s all my own fault,” he told his captors, as they rode in a cab to the county jail. “I’ve nobody but myself to blame, I suppose. Publicity—that’s what got me. Too much hollering about Capone.”

When they reached the jail, reporters again swarmed Capone. By now he was not in a good mood.

“It was a blow below the belt,” he said, “but what can you expect when the whole community is prejudiced against you? I’ve never heard of anyone getting more than five years for income tax trouble, but when they’re prejudiced, what can you do even if you’ve got good lawyers?”

His fingerprints were taken and his pockets searched. After a compulsory bath, he was put in a cell. Among his cellmates was a down-and-outer who couldn’t come up with a $100 fine. Al would try to get it paid.

Capone took in his surroundings with a frown. Someone called out a question: How was this compared to the Philadelphia pen?

“Well,” Al admitted, “it’s a little cleaner.”

A radio began playing “All the World Is Waiting for the Sunrise.”

A photographer, who had no doubt bribed his way onto the cellblock, asked Al to pose.

The prisoner’s rage boiled over. “I’ll knock your block off!” he yelled, and reached for a bucket to throw.

But the guards settled him, saying they’d move him to a more private cell in the hospital ward. They were in the process of doing that when even more photographers descended.

“Think of my family,” Capone whimpered. “Please don’t take my picture.”