# United States v. Capone, 93 F.2d 840 (7th Cir. 1937)

Canonical: https://mobfiles.org/items/courtlistener-us-v-capone-93-f2d-840/

The Seventh Circuit dismisses Capone's appeal from the refusal to vacate his 1931 county-jail sentences on counts 13 and 18. Decided 20 December 1937.

Circuit Court of Appeals, Seventh Circuit, No. 6372. Decided December 20, 1937; rehearing denied January 21, 1938. The panel was Evans, Sparks and Major, and the opinion is by Judge Evans. Abraham Teitelbaum appeared for Capone; Michael L. Igoe, U.S. Attorney, and Warren Canaday, First Assistant, for the government.

It is the appeal from the District Court's denial of Capone's petition of May 28, 1937, to vacate the jail sentences imposed October 24, 1931, on counts 13 and 18. He argued the verdict was inconsistent because the jury acquitted him of evading the tax for the same years. The court held that failure to file and evasion are separate offenses, quoting the Supreme Court: "Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it were a separate indictment." It added that a District Court ordinarily cannot vacate a judgment after the term in which it was entered, and that every ground "could have been raised" in the earlier appeal, 56 F.2d 927. "The appeal is dismissed."

This opinion says counts 13 and 18 concerned the years 1929 and 1930. The 1932 opinion and the U.S. Attorney's summary of the indictments say 1928 and 1929. This archive notes the difference and does not resolve it. Quotations follow CourtListener's scan-derived text, with obvious scanning errors corrected.

## Sources

- CourtListener (Free Law Project), reprinting the Seventh Circuit opinion: https://www.courtlistener.com/opinion/1542846/united-states-v-capone/