Capone v. United States, 56 F.2d 927 (7th Cir. 1932)

Circuit Court of Appeals, Seventh Circuit, No. 4672. Decided February 27, 1932; rehearing denied March 23, 1932. The decision date is 1932, not 1931. The panel was Alschuler, Evans and Sparks, and the opinion is by Judge Sparks. Michael J. Ahern and Albert Fink appeared for Capone; George E. Q. Johnson, U.S. Attorney, with Jacob I. Grossman, Samuel G. Clawson and Dwight H. Green, Assistant U.S. Attorneys, and William J. Froelich, Special Assistant to the Attorney General, for the government.

The court states what was on appeal: “Appellant was found guilty of the felonies charged in counts 1, 5, and 9, and of misdemeanors charged in counts 13 and 18 of the second indictment. As to all other counts of that indictment, and also as to the charge in the first indictment, appellant was found not guilty.” The felony counts covered 1925, 1926 and 1927; the misdemeanor counts, failure to file returns, covered 1928 and 1929.

Capone argued that the felony counts charged evasion in the general words of the statute without saying how he evaded. The court held: “We are convinced that the allegation in relation to appellant’s attempt to evade and defeat the payment of the tax in the instant case is sufficient, and that the objection thereto is one of form rather than of substance.” He could have asked for a bill of particulars and did not. It also held that counts 13 and 18 alleged that no return whatever was made. “Judgment affirmed.”

The opinion recounts the record before trial: the indictment returned June 5, 1931; the guilty plea of June 16; its withdrawal on July 30; and the demurrer filed and overruled on September 29. Quotations follow CourtListener’s scan-derived text, with obvious scanning errors corrected.