Flashlamps fizzed in Chicago's crowded Federal Court last week. Guards banged shut the doors. Beginning was the decisive battle in the Federal Government's long campaign to put Alphonse ("Scarface" to strangers; "Snorkey" to friends) Capone in prison. For three years the Government had waged its campaign, spent over $195,000 on it. For almost as long Gangster Capone had been trying to sidestep charges that he failed to pay a Federal tax on $1,038,654 income during the years 1924—29. Now Scarface Snorkey was on trial.
The Judge was bushy-browed James Herbert Wilkerson, no friend of Capone. It was he who, two months ago, exposed and repudiated a "deal" between prosecuting and defense attorneys whereby Capone was to plead guilty to tax evasion in return for a recommendation that he be given a light sentence. In court Capone's attorney had asserted that the agreement was approved by Attorney General Mitchell and "an Assistant Secretary of the Treasury." In Washington the Department of Justice had admitted approving this deal, insisted the procedure was customary. Undersecretary of the Treasury Ogden Livingston Mills had denied knowing anything about it. Judge Wilkerson had upset the plans by declaring: "The court will listen to recommendations, but it is utterly impossible to bargain with a Federal court." Then he had allowed frightened Capone to change his plea to not guilty, had sought—and failed —to have a grand jury indict him under the Jones ("5 & 10") Law for violation of the Volstead Act (TIME, Sept. 21 et ante). Leaving off his judicial robes, Judge Wilkerson leaned over his desk in a business suit, showed that he took more than a passing interest in the case.
The Defendant was sweating, uncomfortable. For the second time in his life he was uncertain of "beating the rap" (staying out of jail).* If convicted he might be sentenced to 32 years in the penitentiary, fined $80,000. Before him he had the example of his brother Ralph ("Bottles") Capone, who had been sentenced to three years in Leavenworth on a similar charge (but had obtained a stay of mandate until Oct. 20 to file an appeal). Jack Gusick, a Capone lieutenant, had been given five years in prison; other important gangsters were behind the bars. Sighed Scarface Snorkey:
"Who wouldn't be worried?"
The Prosecution was headed by softspoken, wild-haired U. S. District Attorney George Emmerson Q (for nothing) Johnson. Field marshal of the Government's forces seeking to break up gang rule by the left-handed method of jailing gangsters for tax evasion, his success would be measured by his ability to dispose of Capone. Frankly disappointed when the "deal" fell through, he was now excited, eager, mysterious. So far he had kept secret the list of his "surprise" witnesses.