al capone and legal process and indictment

The purpose of this and the next three essays is to try to answer a few questions posed in a historical footnote in RC Marlen's recent novel, Inside the Hatboxes (iUniverse, 2005). In the course of a chapter describing a young girl's disappearance, she describes a scene in a St. Louis neighborhood in November 1932 where someone relates the news that Al Capone was pictured in the Post-Dispatch that day with a big smile on his face as he came out of Federal Court in Atlanta. In her footnote Marlen gives the following from a Nov. 18, 1932 headline and brief notice in the P-D:

"'Scarface' Al Capone, Chicago's 'Public Enemy No 1' now serving a 10-year sentence in Federal prison for income tax evasion, leaving the Federal building at Altanta, Wednesday, after Federal Judge Marvin Underood had taken under advisement his plea for freedom. Capone contends he is imprisoned illegally because the statute of limitations has run in his case."

Marlen then gives three details that are confusing to her:

1. Capone's sentence was for eleven years, but this front-page story says ten years.
2. He was sent to prison for tax evasion that occurred in 1925, 1926, and 1927. The statute of limitations was six years when he was indicted on June 1, 1931. I do not see that the six-year statute had expired.
3. I found no record of the November 18, 1932 release.

I commend Ms. Marlen not only for trying to bring other historical material into her treatment of St. Louis life in the 1930s, but also for her honesty in not trying to "cover over" unclear points. I hope to answer her questions here.

A Few Background Facts on Capone's Indictment

The Net is filled with facts of Capone's life and the ultimately successful attempt of the Federal Government, beginning in the late 1920s, to indict him on charges of tax evasion. The Net has very little good detailed information, however, on the actual charges against Capone and the course of the legal proceedings against him. I will begin when the legal process heats up. His tax indictment actually consisted of two indictments, but they were consolidated into one indictment consisting of 22 counts. The indictment was returned on June 5, 1931 (Capone v. Aderhold, 2 FSupp 280 (DC GA, 1933)). Capone originally planned to plead guilty to some of the counts, because his lawyers had agreed with the prosecutor that a 2 1/2 year sentence would be acceptable to both sides. However, US District Court Judge James H. Wilkerson did not accept their agreement. This led to Capone's lawyers' withdrawing his plea in the summer of 1931 with a full trial in the early Fall. Capone was then suspected of bribing the prospective jurors, and so Wilkerson secretly impaneled a second jury, which was already impaneled for another case, and it the heard Capone's case.

Capone would ultimately be convicted of five of the 22 counts: 1, 5, 9, 13 and 18. Counts 1, 5, and 9 alleged his attempt to "unlawfully, fraudulently and willfully" evade an income tax for the years of 1925, 1926 and 1927 respectively, and Counts 13 and 18 alleged his "failure to make a return of income" for 1928 and 1929, respectively. Just so that you understand the arcane details, you should know the following. In those days the US Congress passed revenue laws either annually or biennially relating to tax issues (The first Income Tax Code was not promulgated until 1937). Thus, as is relevant to this case, there was a Revenue Act of 1926 and a Revenue Act of 1928. Because the Revenue Act of 1926 was passed in February 1926, and the taxes due from calendar year 1925 were not due until March 1926, any alleged 1925 violation could have been prosecuted under the 1926 Act.

These distinctions are important for the following reason. A violation of the 1926 Act was a felony, while a violation of the section alleged in the 1928 Act was only a misdemeanor (this will get to the 10/11-year problem a few essays below). To provide the precise language:

"...any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof, shall...be guilty of a felony" (Sec 1114(b), Revenue Act of 1926 , 44 Stat. 116).

"Any person required under this title to pay any tax, or required by law or regulations made under authority thereof to make a return...for the purposes of computation, assessment, or collection of any tax imposed by this title, who willfully fails to pay such tax, make such return...at the time or times required by law or regulations, shall, in addition to other penalties provided by law (i.e., fines) be guilty of a misdemeanor" (Sec 146(a), Reveune Act of 1928, 45 Stat. 835).

The first talks about "evading or defeating" the tax, while the second talks about "failing to pay such tax" or "make such return." The language of the indictment (see next essay), however, will be different depending on the language of the statute under which different counts of the indictment are spelled out.

The Capone indictment, therefore, was divided into "felony" and "misdemeanor" sections based on the year of alleged violation. Because the Revenue Act of 1928 did not go into effect until May 29, 1928, the evasions of 1925-1927 could be charged as felonies under the 1926 Act, while the violations under in 1928 and 1929 had to be brought as misdemeanors under the 1928 Act. Indeed, the Government wanted to bring a charge for a 1924 violation, too, but they realized that the statute of limitations (see third essay) had run out on that one (indictment had to have been brought by March 15, 1931), and so they separated it out from the other charges. They pressed hard to get their case made on the 1924 violations by March 15, 1931, but I don't know what happened to that indictment. In any case, it would have been swallowed up by the much larger one of June 5, 1931.

Conclusion

Thus, we know that Capone was indicted on 22 counts in June 1931 and that some of the counts were for felonies and some for misdemeanors. Now let's turn to the indictments themselves, as well as his conviction, to get the "language" of the proceeding.

1647