Al Capone and the Law

Last night I watched The Untouchables, and it got me wondering what the deal was with Al Capone's real defeat. Primarily, the movie's apparent inability to distinguish between a subpoena and an indictment (they referred to a '22 count subpoena' that could give Capone '27 years' in prison). (For those of you who don't know the difference, a subpoena is a formal command by a grand jury to appear in person (or, duces tecum, with documents) as a witness to help the jury decide whether they will issue a formal indictment, or charge, of a crime. A subpoena tells you to show up and talk. An indictment tells you that you're going to be tried.) Additionally, when it comes out in the movie that Capone is trying to bribe the jury, his attorney says that they would like to change their plea from 'not guilty' to 'guilty,' causing Capone to jump up and try to attack him. That would absolutely not happen, since a court requires a defendant to swear that (s)he entered into a guilty plea on his own conscience, without pressure, and with the advise of counsel. I don't know if that's how it worked in 1931, but that's how it works now. Either way, those issues raised the questions.

So, the indictment against Alphonse (Al, "Scarface") Capone was passed down on June 5, 1931. It contained 22 counts of tax evasion and tax fraud for the years 1925-1929. The Feds apparently wanted to go after 1924 as well, but the statute of limitations was only six years, so they were too late in 1931. I couldn't find the text of it anywhere (including WestLaw), but I found a link with some of the text of some of the counts.

Here is a Uniontown, PA paper on the indictment:



Back then, internal revenue laws were passed every year (there was no 'tax code'), and income taxes were only levied on those making more than $5,000 per year. An interesting fact is that, under the 1926 revenue law, tax evasion was considered a felony, while after 1928 law, it was simply a misdemeanor. That is why, when Capone was found guilty on five counts (three felonies and two misdemeanors), he received a total sentence of 11 years (two 5-year felonies served concurrently, one served independently, and two misdemeanors totalling 1 year).

Here are the relevant texts:

• "...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).

And here is a copy of the guilty verdict, signed by the jurors.

Fun fact: the judge at the case, refused Capone's original guilty plea, which would have given him 2.5 years in prison; he also changed the jury last-minute due to fears that the original jury had been bribed.

Capone then appealed on habeas grounds, a great discussion of which can be found on page four of this essay. h/t Bill Long