The Untouchables Lied: Ness Didn’t Catch Capone

In Brian DeAlma’s 1987 film The Untouchables, Kevin Cosner stands on a Chicago courthouse stairwell. The verdict has just come down. Robert Dairo’s Al Capone is being dragged out screaming. A reporter shouts a question and Cosner’s Elliot Ness gives the line David Mamemoth wrote for him.

I think I’ll have a drink. The film closes on Ness, the federal prohibition agent who broke down brewery doors with a baseball bat, faced down Chicago’s most powerful gangster, and won. Elliot Ness did not put Al Capone in prison. Capone was convicted on October 17th, 1931.

Three felony counts of income tax evasion, two misdemeanor counts of failure to file. The case that sent him to Atlanta Federal Penitentiary was built by an IRS intelligence unit special agent named Frank J. Wilson. Wilson worked out of a Chicago federal office with a captured ledger nobody else had decoded.

Nest chased breweries. Wilson chased numbers. And the numbers are what stuck. This pattern of Treasury Department forensic accounting over flashy enforcement would define how America caught its most notorious gangsters.

The same T-men methods that brought down Capone had already convicted his brother Ralph Capone a year earlier for tax evasion. It’s the story Hollywood keeps getting wrong. From Little Caesar to Scarface to Good Fellas, the real gangster films should be about accountants. Frank John Wilson was born in Buffalo, New York in 1887.

He served briefly in the US Army during the First World War and was honorably discharged for poor eyesight. By 1920, he had joined what was then called the Bureau of Internal Revenue Intelligence Unit. The agency would later be renamed the IRS. He wore bottle thick glasses.

He was methodical to the point of obsession. His boss, the unit’s chief, Elmer L. Irie, would later describe him this way. Wilson fears nothing that walks.

He will sit quietly looking at books 18 hours a day, 7 days a week forever if he wants to find something in those books. A criminal Wilson once interrogated said he sweats ice water. In May of 1930, I transferred Wilson from Baltimore to Chicago. Wilson was 42 years old.

His assignment was specific. He was not going to chase Capone’s beer trucks. He was going to follow Capone’s money. The legal hammer that made his job possible had been forged 3 years earlier in a Supreme Court case called United States versus Sullivan.

A South Carolina bootleggger named Manley Sullivan had argued in court that income from illegal liquor sales could not be taxed. The Justice Department led by Assistant Attorney General Mabel Walker Willough argued the opposite. In 1927, the court agreed with Willough. Illegal income is taxable income.

With that ruling on the books, the IRS intelligence unit had a new tool. They could prosecute gangsters without proving murder or extortion. They just had to prove the money existed. The problem was finding it.

Al Capone kept no bank account in his own name. He signed no checks. He owned no property. He paid cash for everything.

Over the summer of 1930, Wilson and a team of six agents reviewed approximately 2 million documents, hotel bills, real estate transactions, store receipts, anything that could show Capone spending money he did not declare. They questioned bartenders, accountants, and hotel proprietors. Most were too afraid to talk. The work was slow and for months it produced nothing.

The break came at 1:00 in the morning. Wilson was working late in a Chicago federal office going through evidence shoved in the back of a filing cabinet. He pulled out an envelope that had been mislabeled and forgotten for 6 years. Inside were threebound ledgers confiscated in a citizens raid on a Caponeowned gambling operation in 1925.

Nobody had ever decoded them. The columns tracked money distributed to three people identified only by initials A, R, and J. One page contained the entry that would break the case open. It read, “Frank paid 17,500 for Al.

The ledgers were from the Hawthorne Smoke Shop, a Caponeowned casino in Cicero, Illinois. It had earned over $587,000 in less than 2 years.” Wilson matched the handwriting in the ledgers against bank deposit slips and identified the bookkeeper who had made the entries. His name was Leslie Shamway. Wilson tracked him to a dog track in Miami and turned him as a witness.

Then he located the casino cashier, a man named Fred Race. Race had purchased $300,000 in cashier’s checks under the alias JC Dunar. Wilson found Race in St. Louis brought him to a jail in Danville, Illinois, and after 4 days of cockroachinfested isolation, Race agreed to testify.

The Treasury shipped him to South America to keep him alive until trial. While Wilson built the paper case, another IRS agent was building the human one. His name was Michael Malone. He had grown up in Jersey City, the child of Irish immigrants, and he had spent the First World War flying reconnaissance for the army.

He spoke GIC Italian, Yiddish, and Greek. His dark hair and complexion led him pass for Southern European. The Treasury called him mysterious Mike. In 1929, I sent Malone into the Lexington Hotel on 22nd in Michigan.

That 10story brick fortress was Capone’s headquarters. Capone occupied suite 530 on the fifth floor. He paid $1,500 a month for the space. He had his own barber chair, his own private kitchen, and his own food taster.

The rot iron elevator cage had been lined with bulletproof sheet metal. Capone’s bodyguards lived in surrounding rooms, and well-armed soldiers sat in the lobby pretending to read newspapers. Malone checked into room 724 under the alias Mike Leido. He spent days reading newspapers in the lobby, shooting craps with Capone’s men, and speaking in an invented Italian accent.

He sent letters to friends in Philadelphia written in underworld slang. Capone’s henchmen broke into his room. They found expensive suits from wana makers in silk underwear monogrammed ML. They read his mail and reported back.

Within weeks, Malone was inside. He played cards with Jake Guzik. He attended Frank Niti’s birthday party. He met Capone himself.

This two-year undercover operation remains one of the most audacious infiltrations in federal law enforcement history. A story that deserves its own film. In late 1930, he overheard something he wasn’t supposed to hear. Capone had hired five gunmen from New York to kill four federal officials in the tax case.

Wilson, fellow agent AP Madden, US attorney George EQ Johnson, and investigator PF Roach. The bounty was $25,000. The gunman arrived in Chicago in a blue Chevrolet. Malone got to a telephone at 2:00 in the morning and called Wilson at his hotel.

Wilson and his wife packed in the dark and moved. The hit team waited at the wrong address. Capone, facing internal opposition inside his own organization, eventually called the gunman off. A few months later, Malone overheard something else.

Capone had bribed the jury for his upcoming trial. Malone got the message to Wilson and Wilson got the message to the judge. Bribed jury Capone’s attorney, Lawrence Mattingley, had already made the prosecution’s job easier. In September of 1930, he walked into Wilson’s office holding a letter from Capone.

He threw it across the desk and said that this is the best we can do and that Mr. Capone is willing to pay the tax on these figures. The letter conceded taxable income of $26,000 in 1924. It rose to $100,000 in 1928 and 1929.

Wilson filed it. A year later at trial, it would be admitted into evidence as the defendant’s own admission. On June 5th, 1931, a federal grand jury returned a 22count indictment against Capone for tax evasion from 1925 to 1929. He pleaded guilty in expectation of a 2-year plea bargain.

Federal Judge James H. Wilkerson rejected the deal. Wilkerson said that it was time for somebody to impress upon the defendant that it was utterly impossible to bargain with a federal court. Capone withdrew the plea.

Trial began October 6th. On the first day after Malone’s warning made its way up the chain, Wilkerson moved fast. He switched the entire jury pool with one from another courtroom down the hall. Capone’s bribed jurors never made it into the box.

Mid-trial, Phil D. Andrea, Capone’s bodyguard, was arrested in the courtroom for carrying a concealed firearm. Malone had tipped Wilson again. The trial ran 11 days.

Leslie Shamway testified about the Hawthorne ledgers and the entries inside them. Fred Ree testified about the cashier’s checks. He told the jury how cash from the gambling operations had been converted into bank instruments and then carried to Capone. Wilson testified about the Mattingly letter.

The prosecution introduced evidence that Capone had spent more than $116,000 on non-deductible expenses. Suits, furniture, Florida real estate, a $4,000 swimming pool, $12,500 for a customuilt automobile, all while he declared no income at all. The defense countered that Capone was a terrible gambler who had lost most of his money at the track. The famous journalist Damon Renan would later quip that he had given the award of world’s worst horse player to Mr.

Alons Capone. On October 17th, 1931, the jury convicted Al Capone on three felony counts of tax evasion and two misdemeanor counts of failure to file. A week later, on October 24th, Wilkerson sentenced him to 11 years in federal prison. The fine came to $50,000 plus court costs.

On top of that, $215,8048 in back taxes plus interest. Capone went to Atlanta first, then to Alcatraz. In Brian Dealma’s 1987 film, None of This Happens. The IRS accountant in The Untouchables is named Oscar Wallace.

He is played by Charles Martin Smith. He is shy and bespectled. He has Wilson’s job and Wilson’s idea. Get Capone on income tax evasion. and he dies in the middle of the film, shot to death in an elevator by Frank Niti.

The real Frank J. Wilson was not killed during the investigation. He survived a $25,000 contract on his life. He ran the US Secret Service from 1937 to 1946.

He died of natural causes at the age of 83 in 1970. Mammoth’s screenplay needed a single visible hero. The 18-month case Wilson built became a few minutes of Charles Martin Smith reading numbers off a chart. The undercover work Mike Malone did inside the Lexington for two full years gets compressed into nothing.

There is no lipito in the film, but Mamemoth did keep one thing. He kept the name. Shan Connory’s fictional Irish beat cop in the film is called Jim Malone. He won Connory the only Oscar of his career.

He is named after a real IRS agent. The real Capone never figured out. Frank Niti does not get thrown off a courthouse roof by Kevin Cosner. In real life, Niti served 18 months on his own tax evasion plea.

He took over the Chicago outfit when Capone went to prison. He ran it for 12 years. On March 19th, 1943, Niti walked to an Illinois Central Railroad branch line in North Riverside, Illinois. He shot himself in the head with a handgun.

He was 57. And Elliot Ness, the man Kevin Cosner is playing, only ever met Al Capone once in person, as far as the historical record knows. By May 3rd, 1932, Wilson had already won the case. Ness was one of several federal agents assigned to escort Capone from Cook County Jail to Dearborn Station.

There, Capone boarded the Dixie Flyer to Atlanta. That was the meeting. There is a final twist nobody who watches the DeAlma film ever finds out. Hollywood already made a movie about Frank Wilson.

It came out in 1949. It was called The Undercover Man. The Wilson character was played by Glenn Ford. The script was adapted from Wilson’s own firsterson serial, Undercover Man.

He trapped Capone in Collier’s magazine in 1947. It is a perfectly competent noir film about a Treasury agent building a tax case against a Capone style mob boss and almost nobody remembers it. 8 years later in 1957, Elliot Ness was broke. He had been divorced twice and was living in Cterport, Pennsylvania. He was working for a small startup called Guaranty Paper Corporation.

The company claimed to have a new watermarking technology. It would later collapse when one of Ness’s partners turned out to have misrepresented the technology entirely. Ness was drinking heavily by then. He spent his evenings in a local bar telling stories about Chicago.

That same year, he finished collaborating on a ghostritten memoir with a journalist named Oscar Frelli. The book was called The Untouchables. Days after Ness approved The Final Galleys, he died of a heart attack at the age of 54. No Chicago newspaper carried his obituary.

His role in the Capone case had been largely forgotten by the men who lived through it. His ashes were eventually scattered in a small pond at Lake View Cemetery in Cleveland. The book published months later. The ABC television series followed in 1959.

Robert Stack played Ness. The series ran for four seasons and in 1987, Brian Dealma and David Mamemoth adapted the book again. They cast Kevin Cosner, Robert Dairo, Shan Connory, Charles Martin Smith, and Andy Garcia. Paramount sold it as the definitive story of how Al Capone went to prison.

Frank Wilson’s own autobiography called Special Agent had come out in 1965. By then, the legend was set. After conviction, in a courthouse elevator, Capone turned to Mike Malone, the undercover agent he had played cards with for 2 years. The only thing that fooled me was your looks.

Capone said, “You took your chances and I took mine. I lost.” Fooled. This is what cinematic framing actually costs. A man who lived to retirement, who ran the Secret Service for 9 years, who left an archive of his papers at the University of Wyoming, who wrote his own book in 1965 and called it Special Agent.

That man can still be erased if the film picks somebody else. Frank J. Wilson sat in a federal office at 1:00 in the morning. He decoded a ledger that had been mislabeled and forgotten in a filing cabinet for 6 years.

The entry he found read, “Frank paid 17,500 for Al. That entry is the reason Al Capone went to Atlanta on May 3rd, 1932. Elliot Ness on that May 3rd was holding one end of the prisoner. The man on the other end was already someone else’s problem.

The Untouchables is a great film. It’s also, in the part that matters most, the wrong story about the wrong man.