Al Capone Trial:
 Selected Documents: Contempt of Court Decision (Feb. 27, 1931)

Mugshot of Alphonse Capone following his 1930 arrest on charges of tax evasion

Contempt of Court Opinion



vs.                    )                                            Before Wilkerson, J.


C A P O N E               )

Friday, February 27th, 1931

 10 o’clock A. M.


   THE COURT:          This respondent was served on the 27th of February, 1929, with a subpoena from this Court requiring him to appear before the grand jury on the 12th day of March, 1929, at 10 o’clock A. M.

            On the 11th of March he entered his appearance in this court, submitted himself to the jurisdiction of the court, and made an application to the court to postpone his appearance in response to the subpoena until the April term of the court, or until such other time as his appearance might be directed by the order of the court. 

            In connection with the petition and made a part of the petition by express reference there was submitted to the court an affidavit executed in Florida and sent by the respondent to Chicago.  The affidavit was that of a doctor named Phillips.

            The affidavit stated that he was acquainted with the respondent, that he had been attending him ever since the 13th of January; that the respondent was then under his professional treatment.  That since January 13, 1929, the respondent had been suffering from bronchopneumonia pleurisy with effusions of fluid into the chest cavity, and for six weeks was confined to his bed at his home on said Palm Island, and had been out of his bed only for ten days last past, that he had not fully recovered from the disease and that in the professional opinion of the affiant his physical condition was such that it would be dangerous for him to leave the mild climate of Southern Florida and go to Chicago, and that to do so would imperil the safety of the respondent; that there would be very grave risk of relapse which might result in his death from the recurrence of pneumonia; that the doctor advised against requiring the respondent to go from Florida to Chicago, and that it would be inconsistent with the personal safety of the respondent to go to Chicago; that the opinion expressed by his was concurred in by three professional consultants of the City of Miami, Dr. Goudy, Dr. Maxwell, and Dr. Pierson, all of whom may be reached by addressing them at 120 Shoreland Arcade in the City of Miami. 

            Now as to this affidavit the fact is that it was executed in the office of a lawyer; that it was taken from the lawyer’s office and sworn to before the United States Commissioner and turned over to the respondent.  It appeared first in the court accompanied by a letter which concededly was written by the respondent and in which there was a reference to his desire to obtain a stay of time for his appearance before the Grand Jury.  The doctor said he did not pay very close attention to the affidavit when it was dictated by the lawyer.  There is no contention, however, by the respondent here that he did not understand the allegations of the affidavit.  He was not undertaken to assert any lack of familiarity with the statements in the affidavit.  On the contrary, he adopted it and sent it to Chicago to the attorneys to be used for the purpose indicated.

            Aside from the opinion of the doctor as to what was the matter with the respondent, there were certain averments of facts in the affidavit which could not have escaped the attention of any one who had given even a slight consideration to the language of the affidavit.

            There is a positive statement of fact that the respondent had been confined to his bed at his home for a period of six weeks after the 13th of January, and there is the positive and direct statement that he had been out of bed only for ten days last past.

            Now the testimony offered by the respondent consisted of the evidence of Drs. Phillips and Owens and of the two nurses. 

            Dr. Phillips’ testimony, of course, must be considered in the light of the telegram which he sent to Dr. Owens in which he characterized the sickness of the respondent as not serious in its character.  He has given an explanation for that, but without saying anything further concerning the testimony of Dr. Phillips, I think clearly that we must decide the question of fact as to the respondent’s illness in January upon the testimony of Dr. Owens and the two nurses.

            Dr. Owens reached Miami sometime between the 15th and 20th of January and found him, he says, seriously ill from the disease mentioned.  He remained there a few days, and when he left, shortly after the 20th of January, so far as temperature and pulse were concerned, the condition of the patient was about normal.

            One of the nurses when to the home on the 5th of January and remained a little less than three weeks.  The night nurse who was called in by Dr. Phillips went there on the 13th or about the 13th and remained seven or eight days.  I think she said seven to ten days.  At any rate, the nurses had gone by the last week of January, and the evidence establishes beyond all reasonability of doubt in this case that during the month of February the respondent was not confined to his bed. 

            The evidence shows during that period frequent attendance at the race track; it shows a trip in an airplane; it shows a boat trip, and taking all of the evidence, it is perfectly clear that at least after the 2nd of February it could not be truthfully stated that the respondent was confined to his bed, and that the statement on the date when the affidavit was made, namely the 5th of March, 1929, the respondent had been out of bed of only ten days last past was glaringly false.

            Now the result of the whole thing was that there was a short extension of the time within which this respondent was to appear before the Grand Jury.

            But I think that we miss the point in this case when we lay stress upon what happened when counsel for the defendant and Dr. Anderson appeared before this branch of the Court, or when we lay stress upon the inconvenience, if any, to which the United States was subjected by the failure of the respondent to come here on the 12th, or if we lay stress upon the statement of the respondent in his application for a continuance that he was willing to come here whenever the Court directed him to come, or the statement which it is said was in the letter that he did not wish to be in contempt of court, -I say we miss the point in this case when we lay stress upon that.

            The point in this case as I see it, is this: There has been a system established for the administration of justice.  The Court is a part of that machinery which is erected for the administration of justice.

            Now the Court deals with litigants, with witnesses, with jurors in only one way, and that is through the process of Court, and when the process of Court issues it is to be respected, it is to be obeyed, it is not to be trifled with, it is not to be flaunted; and with respect to the process of the court the duty rests upon litigants and upon witnesses and upon jurors to deal honestly and fairly and frankly with the court; and when an attempt is made to interfere with the function of the process of the Court, when an appeal is made to the Court to relieve a party from obedience to the process of the Court, the Court is entitled to the fullest, fairest and most complete disclosure of all the facts.  In no other way may the Courts operate.

            Now here we have an application addressed to this Court with respect to the execution of the process of the Court in which it is represented to the Court that the respondent had just been out of bed for ten days, when it must have been a matter of general knowledge in the community in which he was staying that he was not sick in bed at all.

            Now the point in this case is the effect of conduct of that kind upon the administration of justice, and the situation is not changed by the [unreadable] which the Court took with reference to this document.  The situation would be the same if the Court had acted in granting the continuance for some reason entirely different from the one stated in the affidavit.

            The point to the case is that instead of obeying the process of the Court, the respondent, to be relieved from obedience to the process of the Court, sent this affidavit which contained these false statements. 

            Upon the record as it stands there is nothing for the Court to do except to adjudge the respondent guilty of contempt of Court as charged in the information, and as punishment for the contempt the respondent will be committed to the County Jail of Cook County for  the period of six months.  The United States may prepare the order.

            MR. EPSTEIN: If you Honor please, I wish to enter a motion in arrest of judgment.

            THE COURT: Yes.

MR. EPSTEIN: And in support of my motion for arrest of judgment I wish to assign the argument that there is no proof that the defendant had any knowledge of the false representations that were made, as I made before in my argument, and I wish to urge in support of the motion in arrest of judgment that there has never been any service personally of the rule to show cause in this case; and I might say all the other point that were heretofore argued and presented and contained in the motions heretofore made.

            THE COURT: The motion will be overruled.

            MR. EPSTEIN: May I have an exception to the overruling of the motion in arrest?

            THE COURT: Yes.

MR.  EPSTEIN: Now if your Honor please, will your Honor make any findings of fact in connection with the –

            THE COURT:  Well I have directed the United States Attorney to prepare an order.

            MR. EPSTEIN:  Your Honor, the verdict was that –

THE COURT: He will put in this order the facts found.  I have found no that the charge of the information –

            MR. EPSTEIN: That he was guilty of the charges contained in the information.

THE COURT:  Oh, that may be embodied in the formal offer which the United States submits.

MR. EPSTEIN: Will your Honor – until the presentation of that order I suppose there is no real final order in the case.

            THE COURT:  What is the bond of the respondent?

            MR. EPSTEIN: $5,000 and he has voluntarily appeared, as your Honor knows.

            THE COURT: I think that is a sufficient bond.

            MR. EPSTEIN:  As the matter stands on the –

THE COURT:  You may present the formal order for entry next morning at 10:00 o’clock.

            MR. EPSTEIN: At that time will your Honor allow us an order –

THE COURT:  There will be no order this morning.  I have announced my decision in the case and formal order will be presented here Monday morning at 10:00 o’clock by the United States Attorney for entry.  In the meantime the respondent may be at liberty on the bond which he has already given in this case, if that is satisfactory to the respondent. 

MR. EPSTEIN: And at that time, if you Honor please, or shall we make a motion now, praying an appeal? Will your Honor allow an appeal?

THE COURT:  I will allow an appeal.  You can present your petition when you have it ready, petition and assignment of errors and bond on the appeal will be the same as the bond here, $5,000.

            MR. EPSTEIN: And supersedeas?

THE COURT:  I think that bond is sufficient on appeal.


THE COURT:  Yes, supersedeas, bond $5,000.

MR. EPSTEIN:  Will your Honor allow supersedeas?

THE COURT: On $5,000 bond.

MR. EPSTEIN:  On $5,000 bail.

THE COURT:  I may, however, limit the operation of the supersedeas.  I think that you should prepare on this hearing a bill of exceptions within twenty days.  I think that would be ample time for you to do that, so that you can get the record up and get it docketed before the Court of Appeals.  I should like to limit the time of operation of the supersedeas so that the case may be considered before the Court adjourns in July.  I do not think that is any hardship upon counsel.

MR. EPSTEIN:  Well, it will be a hardship –

THE COURT:  Sometimes in matter of this kind a great deal of force of the Court’s acts, if they are correct, is lost in delay, and I think it is important that the questions which are involved should be finally disposed of at as early a date as possible.  I am disposed to do everything to facilitate your getting your appeal and your bill of exceptions. 

MR. EPSTEIN:  Well, as to that I don’t know.  For twenty days right now to me happens to be –

THE COURT:  Thirty days.

MR. EPSTEIN: -- a time when I am going to be very busily engaged, but I have able assistants and counsel and colleagues and cogitators with me.

THE COURT:  Did you both have reporters in this case?

MR. WAUGH: Yes, your Honor.

THE COURT:  The record in this case is short and somebody can take it and abstract it and make a statement of the evidence in a day, I should think.

MR. WAUGH:  Of course it has to be written up first.  We have not had it written up yet.

MR. EPSTEIN:  We have not had it written up as we went along. 

THE COURT:  Those questions may be disposed of on Monday. 

MR. WAUGH:  All right.

(Thereupon an adjournment was taken to Monday, March 2, 1931, at 10:00 o’clock A. M.)