Herman J. Rossi’s other Mabel, the one who saved his skin

Note:  The author has, for the past year, been writing a book about Herman J. Rossi, five-time mayor of Wallace, and his notorious murder of his young wife’s lover in June of 1916.  The following was adapted from Ch. XXI of this draft volume.

Rossi and City - 1930.jpg

Herman Rossi and the City of Wallace in syndicated article, 26 Aug. 1930

Miss Mabel Price, who was 15 years younger than her groom, married Herman J. Rossi on March 16, 1906 at St. Thomas Church in Coeur d’Alene, Idaho.  Herman was, at the time, the sitting mayor of Wallace.  Ten years later, Mabel – while husband Herman was away on a political errand in Boise — engaged in a drunken and heedless encounter with musician Clarence “Gabe” Dahlquist at the Rossi home in Wallace.  Herman’s shattering discovery of her adultery upon his return home, on June 30, 1916, led to Rossi’s murder of Dahlquist that same evening at the Samuels Hotel in downtown Wallace.  After a weeklong trial, in October, 1916, Rossi was readily acquitted by a Shoshone County jury.  The trial and its dramatic verdict were frontpage news all over the Northwest.  By the time of Rossi’s own death however — 20 years later, on March 12, 1937 — newspaper tributes said nothing of his 1916 murder trial and instead recounted the more the recent courtroom dramas springing from Rossi’s violations of the National Prohibition Act in 1929, for which he was once again ultimately exonerated.

Rossi in 1929 – by now long divorced from Mabel and happily remarried – was once again Wallace’s sitting mayor.  In that capacity he’d participated in an unorthodox taxation scheme that drew revenue for the city’s treasury from liquor sales, prostitution, and gambling in Wallace.  Nearby Mullan’s city government had developed a similar scheme.  In both towns, such taxation was justified on grounds that large populations of young, male, work-parched miners imposed policing and other expenses that required tax revenue from somewhere.  Since city officials did not pocket the money themselves, this reasoning went, taxing the steady and unabated flow of illicit liquor during Prohibition offered a pragmatic solution and as good an idea as any they could come up with.

Federal prosecutor Hoyt E. Ray, in Boise, however, took a dim view of Wallace’s and Mullan’s novel taxation schemes.  In August, 1929, Hoyt and federal marshals, determined to enforce the National Prohibition Act in notoriously freewheeling Shoshone County, conducted an early morning raid.  The marshals seized over 600 gallons of bootleg and Canadian liquor in Mullan, Wallace, and Kellogg.  Indictments of city officials, police, and county law enforcement officers followed.  Persons in charge of local establishments paying these ersatz taxes were also swept up in Hoyt’s grand prosecutorial onslaught.  In due course, nearly all of Mullan’s and Wallace’s defendants would be convicted in two trials staged in Coeur d’Alene.  Community support in Wallace and Mullan was strongly behind the defendants.  In the Mullan trial, which concluded on December 29th, Hoyt won convictions for 24 of the town’s 29 defendants; in Wallace’s, which trial concluded a half-year later on June 21, 1930, Hoyt prevailed respecting all 32 defendants.  Some Wallace defendants, however, appealed their cases and remained free on bond.

And that’s where Rossi’s other Mabel enters the story.

Mabel Walker Willebrandt was, for most of the 1920s, arguably the most powerful woman in the U.S. federal government.  She was an unlikely candidate for so influential a status.  Born on May 23, 1889 at Woodsdale, Kansas, in what one writer termed a “dugout” – described as “a dwelling carved out of some ground in a river bank or hill”[1] — her childhood was nomadic, “wandering through the Midwest, as her parents tried their hands at farming, schoolteaching, journalism and banking.”[2]  She married Arthur F. Willebrandt at Kent County, Michigan on January 31, 1910 – he, age 22; she, 20.  Both listed their occupations as schoolteachers on their marriage license.  The couple subsequently moved around too.  The following year, Mable graduated from Tempe Normal School in Arizona, a teachers’ college later to become Arizona State University.  Then, in 1912, the couple moved to Los Angeles, where Mabel continued teaching school and, via evening classes, pursued a law degree at the University of Southern California.  She graduated with that law degree in 1916, the same year she separated from her husband (they formally divorced in 1924).  She also passed the bar in California in 1916 and earned a master’s degree in law the following year.

Willebrandt had a gift for the law.  She was soon appointed to the public defender’s office in Los Angeles County, the first woman to receive that honor.  In that capacity she was frequently called upon to defend prostitutes and she pushed, controversially, for the joint prosecution of johns.  In 1921, her legal career only five years old, Willebrandt’s legal acumen caught the attention of California’s U.S. Senator Hiram Johnson, who recommended her to President Warren Harding.  On August 29th of the same year, Harding appointed Willebrandt Assistant U.S. Attorney General.  In that post she was assigned three weighty responsibilities:  oversight of federal prisons, federal income tax litigation, and — most importantly for our story — prosecution of violations of the National Prohibition Act.  The third responsibility, especially, was a job few wanted.  Prohibition’s enforcement faced countless obstacles.

But Mabel Walker Willebrandt excelled at her new assignments.  Before long she became dubbed the “Portia of Prohibition” — after the sharp-witted character in Shakespeare’s Merchant of Venice who thwarted Shylock by pointing out that he could not remove a pound of Antonio’s flesh without also illegitimately taking some of his blood as well.  In the mid-1920s, Willebrandt hit upon the then-novel idea of prosecuting bootleggers for personal income tax evasion.  “Until now,” wrote Bill Bryson, in his book, One Summer: America, 1927 (2013),

mobsters had seemed invincible.  They couldn’t be prosecuted for murder or other serious crimes because no one was ever brave enough to testify against them.  It was almost impossible to connect them to their illicit businesses because they never put their names to contracts or other incriminating documents.

Willebrandt - 1927.jpg

Mabel Walker Willebrandt, newspaper photo in 1927

Willebrandt had taken note that wealthy bootleggers lived lavish lifestyles but paid no federal income tax.  Prosecuting for tax evasion, therefore, might offer an easier way to enforce the National Prohibition Act than straight-on prosecutions for liquor violations, murder, and all the other crimes associated with the illicit alcohol trade.  “Prosecuting criminals for tax evasion is such a common ploy [nowadays],” wrote Bryson, “that it is easy to overlook how brilliantly original – how completely, stunningly out of left field – the idea was when she first came up with it.”

Willebrandt tested the strategy first on a South Carolina bootlegger named Manley Sullivan.  Sullivan argued that requiring him to divulge illegally gained income in a federal tax return would violate his Fifth Amendment right against self-incrimination.  Manley’s conviction in the District Court of the Eastern District of South Carolina was subsequently reversed by the Fourth Circuit Court of Appeals and then taken to the U.S. Supreme Court.  There, on May 16, 1927, in a decision penned by Associate Justice Oliver Wendell Holmes, Jr., the Fourth District’s reversal was set aside and the Supreme Court of the United States declared that taxation of illegally gained income was an appropriate use of federal taxing authority.  Willebrandt’s clever tactic became the law of the land.

The court’s opinion reasoned that someone completing an income tax return that included illegal income could exert his Fifth Amendment privilege simply by leaving blank the income’s sources.  “If the form of return provided called for answers that the defendant was privileged from making,” wrote Holmes, “he could have raised the objection in the return, but could not on that account refuse to make any return at all.”  The decision ultimately became the legal basis of Alphonse “Al” Capone’s criminal conviction four-and-a-half years later, in November of 1931, sending the famous gangland figure and bootlegger to Alcatraz for an eleven-year term.  Capone’s brother, Ralph “Bottles” Capone, also involved in the bootlegging trade, had been convicted of tax evasion a year earlier, and news of brother Al Capone’s pending prosecution on the same charge circulated in the press as early May of 1930.[3]

Rossi and 16 fellow Wallace defendants brought their case to the Ninth Circuit Court of Appeals, in San Francisco, in March of 1931.  This time the decision handed down by the court’s three-judge panel, on April 13, 1931, must have taken the Wallace group’s breaths away.  Not only were the Wallace defendants’ convictions reversed but the court’s majority opinion, written by Circuit Judge Frank H. Rudkin and joined in by Circuit Judge William Ball Gilbert, offered a sweeping and resolute condemnation of the original trial’s handling of the Wallace cases and their guilty outcomes.

The lynchpin in Judge Rudkin written opinion was Willebrandt’s victory in the U.S. v. Sullivan case.  Municipalities (and states) were free to tax illegally gained income, said the Ninth Circuit’s opinion, because the federal government had already blessed that practice in U.S. v. Sullivan, as articulated in Justice Holmes’ 1927 opinion.  If “…Congress may tax what it also forbids,” Rudkin wrote, “we know of no reason why the state or municipality may not do the same.”  And so it came to pass that a 1927 U.S. Supreme Court decision clearing the path for Mabel Walker Willebrandt’s zealous pursuit of wealthy and powerful bootleggers provided — in a stroke of wonderful historical irony — the key factor in the exoneration of Wallace’s liquor defendants, including Rossi, in 1931.  History does not record whether Mabel Walker Willebrandt may have quietly smiled or simply grimaced at this unanticipated byproduct of her inventive strategy.  By the time the Wallace case was heard by the Ninth Circuit she’d already left government service and was enjoying a prosperous private law practice back in L.A.

________________________________________________

[1] Kathryn Keneally, “From Clique to Community: The Power of Inclusion,” The Tax Lawyer 68(2):283-288, (Winter) 2015, p. 283.  Another source termed the dwelling simply “a sod hut.” 

[2] “Review: Mabel Walker Willebrandt: A Study of Power, Loyalty and Law by Dorothy M. Brown, Michigan Law Review 83(4):1057-1060, (Feb.) 1985.

[3] “U.S. Seeks Capone Indictment On Evasion of Tax on Income; Aid Identified as ‘Jail Bird,’” The Miami News, 19 May 1930, p. 1.

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