al capone and tax evasion and revenue act of 1926 and revenue act of 1928

Capone was sentenced in November 1931 for the felony violations (Counts 1, 5 and 9), which were violations of the Revenue Act of 1926 and the misdemeanor violations (Counts 13 and 18), violations of the Revenue Act of 1928. He received five years each for the felony violations, but Counts 1 and 5 were to run concurrently, with Count 9 running after the first two had been completed. Thus, on the felony charges he faced 10 years in federal prison. I couldn't find the specific information on the misdemeanor charges, but it is likely that he was sentenced to one year for the misdemeanor violations (and this sentence was likely added to the felony sentences). Thus, when you read elsewhere that Capone was sentenced to 11 years, this calculation is a result of the combination of the felony and misdemeanor sentences for the same violations (not filing income tax returns--Congress had changed the penalty for this from a felony to a misdemeanor in 1928). In November 1931, he was sentenced by US District Court Judge James H. Wilkerson, of the Northern District of Illinois, to eleven years in federal penitentiary. Capone's sentence would be served in the federal penitentiary in Georgia.* He was not immediately sent to

[*I don't yet know the reason for this, since Leavenworth was closer to Chicago.]

Atlanta, Georgia, however, since everyone knew that his lawyers would appeal his sentence. Thus, he was kept in Chicago until May 1932, when he was shipped off to GA.

In the meantime, Capone's lawyers appealed the sentences (Capone v. US, 56 F2d 927 (7th Cir 1932) and they were affirmed by the Seventh Circuit Court of Apeals in February 1932. The basis of appeal by Capone's lawyers was that the indictments were not in specific-enough language. The court pointed out that they were specific enough--they gave the defendant quite enough information to defend himself and they were worded in the terms required by the 1926 and 1928 Revenue Acts. Capote's lawyers also petitioned for a rehearing, which was denied in March 1932 and then petitioned for the US Supreme Court to take the case. The Supremes declined to grant review. Thus, with all his appeals exhausted, Capone was finally transported to federal prison in Georgia in May 1932. Now we are ready for RC Marlen's questions, which she raises in Inside the Hatboxes, p. 291.

Capone in Georgia

This is not the place to discuss Capone's bribery of guards and other things that led to his preferential treatment in the Georgia prison in 1932. This treatment, however, would be the leading cause for his transfer to Alcatraz, however, in 1934. Alcatraz had only begun accepting prisoners in 1933, and so Capone was one of the first people to be exposed to and broken by its legendary isolation.

But before Alcatraz opened and while he was in Georgia, Capone's lawyers brought a new case, this time before US District Judge E. Marvin Underwood. It was a habeas corpus case, which means it was a challenge to the legality to his imprisonment. Such cases are brought against the warden of the penitentiary, and the warden is required to show cause why the person bringing the case isn't held illegally. The warden of the US Penitentiary in Atlanta at that time was a certain A.C. Aderhold. Hence the name of the case would be Capone v. Aderhold (2 FSupp 280 (ND GA, 1933).

When we learn the grounds for which the habeas petition was brought, we see how good Ms. Marlen's questions are and how they can easily be answered.

The Nature of Capone's Habeas Corpus Petition

In his opinion, Judge Underwood gives the reasons for the petition:

"Petitioner contends that the sentences are void and the imprisonment thereunder unlawful because the indictment upon which they are based shows on its face that the offenses charged in counts 1, 5, and 9 were barred by the statute of limitations, and that, at the trial, no fact was proved in evidence or claimed to exist which would prevent the running of the statute."

We can now answer Ms. Marlen's first question, about the 11-year/10-year problem (Capone was sentenced to 11 years in the federal penitentiary but the November 1932 newspaper story says that he was serving a 10-year sentence). In the habeas petition, his lawyers only attacked the 10-year part of the sentence. That is, they were only bringing a case against the three felony convictions (Counts 1, 5, and 9). They were not contesting the misdemeanor counts. Thus, the newspaper headline is sort of correct where it says that he was serving a 10-year term in a federal penitentiary. He was serving an 11-year term, but the case was only about ten of those years.

The ground on which the case was brought was the statute of limitations provision of another statute in the Revenue Act. It provided:

"‘No person shall be prosecuted, tried, or punished for any of the various offenses arising under the internal revenue laws of the United States unless the indictment is found or the information instituted within three years next after the commission of the offense. For offenses involving the defrauding or attempting to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner, the period of limitation shall be six years..." (former 18 USC 585).

Capone's lawyers argued that the statute has a clear three-year statute of limitations for "any" of the offenses arising under the revenue laws of the United States. If, indeed, the six-year limitation applied, a higher standard of proof was required (defrauding or attempting to defraud the United States). This was simply a case of not paying taxes. Therefore, a three-year statute of limitation applied. Since the felony counts were for alleged non-filings of the 1925, 1926 and 1927 returns (the last one was due on March 15, 1928), the three-year statute of limitations would have expired on March 15, 1931. But, the indictment was brought on June 5, 1931. Hence, the US government was late in bringing the indictment, the charges must fall and the sentences be voided.

Conclusion

Actually, this isn't a bad argument. And, it explains the answers to RC Marlen's other two questions. It tells why Capone's lawyers are bringing a statute of limitations argument (they argue that a three-year rather than a six-year limitation applies). And, since Capone is bringing the case, he is entitled to be in Federal Court while the judge is hearing evidence and motions in his case. Thus, Capone's being "out of jail" on November 18 or November 17, 1932 was only because of his attending his hearing. It had nothing to do with him "getting out" of prison. The judge, after the hearing in November 1932, took the matter under advisement, and would hand down his opinion in March 1933. That opinion is the subject of the next (and last) essay.

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