Finally, the government's mission was coming to closure in the early spring of 1931. Facing a six-year statute of limitations on some of the earlier evidence, the government had to prosecute the 1924 evidence before March 15, 1931. A few days before that deadline, on March 13, a federal grand jury met secretly on the government's claim that in 1924 Al Capone had a tax liability of $32,488.81. The jury returned an indictment against Capone that was kept secret until the investigation was complete for the years 1925 to 1929.
On June 5, 1931, the grand jury met again and returned an indictment against Capone with twenty-two counts of tax evasion totalling over $200,000. A week later, a third indictment was returned on the evidence provided by Ness and his team. Capone and sixty-eight members of his gang were charged with some 5,000 separate violations of the Volstead Act, some of them going back to 1922. The income tax cases took precedence over the Prohibition violations.
Capone was facing a possible 34 years in jail if the government completely won its case. Capone's lawyers presented U.S. Attorney Johnson with a deal. Capone would plead guilty for a relatively light sentence. Johnson, after discussing the offer with Irey and the new Treasury Secretary Ogden Mills, accepted the deal and agreed to recommend a sentence between 2 and 5 years.
Why would the government after all its efforts take accept such a light sentence? First of all, despite the government's extraordinary efforts to hide Shumway and Reis, there were very real concerns about them living to testify. Capone had put a bounty of $50,000 on each of the bookkeeper's heads. There was also some doubt that the six-year statute of limitations would be upheld by the Supreme Court. An appeals court had already ruled on a three-year statute of limitations for tax evasion. Then there was an enormous potential for jury tampering, both through bribery and intimidation.
When word of the deal leaked, the press was outraged that Capone would get off with such a light sentence.
Capone went into the courtroom on June 16 a fairly happy man. When Capone pleaded guilty, Judge Wilkerson adjourned the hearing until June 30. Capone told the press he was entertaining offers from the movie studios to make a film of his life. He was in excellent spirits when he appeared for sentencing in front of Wilkerson at the end of the month.
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| Judge James Wilkerson |
Judge Wilkerson had a little surprise for Al. "The parties to a criminal case may not stipulate as to the judgment to be entered," Wilkerson said firmly. He made it quite clear that while he would listen to Johnson's recommendation, he was not bound to go along with it. "It is time for somebody to impress upon the defendant that it is utterly impossible to bargain with a federal court." It was a shock to Capone. The deal, the plea bargain was kaput and Al was clearly worried. Capone was allowed to withdraw his guilty plea and a trial was scheduled for October 6.
