``We couldn't make this stuff up,'' said one federal prosecutor more than a year ago of what has become the signature phrase of the investigation.
Francis Ford Coppola and Mario Puzo rode to fame and fortune on a similar line - ``We'll make him an offer he can't refuse'' - but that was make-believe. This was real life. Or maybe it was life imitating art. Sometimes the FBI agents monitoring the conversations in Avena's downtown Camden office suite couldn't be sure.
Now it's up to a U.S. District Court jury in Philadelphia to decide.
The trial of Avena and four codefendants, which opened last week, is set to resume today before Judge Ronald Buckwalter.
In some ways, the case is a rerun of last fall's federal racketeering trial that ended in the convictions of mob boss John Stanfa and seven codefendants. Once again, the tapes - more than a hundred secretly recorded conversations picked up by FBI bugs planted in Avena's office from October 1991 to September 1993 - will be crucial to the prosecution. And once again they will be bolstered by the testimony of mob turncoats who murdered and extorted for Stanfa and then became informants in order to win reductions in their own pending jail terms.
Reputed mobsters Luigi ``Gino'' Tripodi, Salvatore Brunetti, Giuseppe Gallara and Gaeton Lucibello are also on trial. Each will mount a separate defense against the various charges - racketeering acts that include murder, murder conspiracy, extortion and obstruction of justice - that they face.
But if Stanfa, the bull-necked Mafia don, was the dominant defendant in last year's trial, then Avena, the avuncular 69-year-old lawyer in whose office most of the incriminating tapes were recorded, is the central figure this time.
And if, as most courtroom observers believe, Stanfa's presence was a detriment to his codefendants, then part of the overall defense strategy in the current case will be to turn Avena's presence into an asset.
``The evidence will show Mr. Avena is a lawyer gone bad,'' Assistant U.S. Attorney Robert Courtney 3d, one of four federal prosecutors trying the case, told the jury in opening arguments last Monday. ``He crossed over the line.''
``These tapes will show you that Mr. Avena was doing his job,'' countered Avena's lawyer, Edwin Jacobs Jr., in his opening. ``He did all the things that a good criminal attorney is supposed to do.''
So, as the tapes are played and the mob talk echoes through the 17th-floor courtroom, the question that hangs in the air and that could go a long way to determining the outcome of the case is this: Was Sal Avena a mobster or a barrister, consigliere or legal counsel?
* A man noted for his polite and courtly manner, Salvatore J. Avena has operated his law practice for decades out of a nondescript second-floor suite of offices at 519 Market St. in downtown Camden.
Along the way, he has represented a coterie of criminal defendants, including the late Philadelphia mob boss Angelo Bruno as well as Stanfa, Anthony ``Tony Buck'' Piccolo and several other reputed South Jersey mob figures.
Unlike some other well-known mob lawyers - Bruce Cutler in New York or Bobby Simone in Philadelphia, for example - Avena is not a flamboyant or aggressive courtroom advocate. His is a more studied, low-key approach. Competent and effective are the words often used to describe his practice. His standing with many of his more notorious clients was enhanced by his family background: His father, John Avena, had been a Philadelphia Mafia boss in the early 1930s. He was murdered, gangland-style, when Sal Avena was 10.
Piccolo, who was convicted with Stanfa last year, alluded to that in one conversation recorded by the FBI.
``I mean, this fellow comes from an honorable family,'' Piccolo said, defending Avena's reputation in what authorities say was an underworld dispute. ``And here's his father that gave his life for this family. Jesus Christ, don't we respect each other anymore?
``I mean, Christ almighty, he does favors. . . . He don't take advantage of anybody. He breaks his neck for everybody, and this is the way he's gonna be treated?''
But there was more to Avena than his alleged mob ties, which made his March 1994 arrest and indictment on racketeering charges along with Stanfa and the others all the more startling to those who knew him.
Raised by a widowed mother in South Jersey, Avena worked picking vegetables and on a conveyor-belt assembly line at the old RCA plant while earning his bachelor's and law degrees, Jacobs told the jury last week. After serving in the Army, he started a 46-year legal career that included a stint as a deputy New Jersey attorney general, a municipal director of public safety and a lawyer for several police unions. His work with those unions resulted in lifetime membership in South Jersey police groups, Jacobs said.
What's more, say many who know him, he is a genuinely nice guy, one who could talk at length about law, philosophy, good restaurants or his six grandchildren, on whom he clearly dotes.
But federal prosecutors say the tapes tell another story.
* ``John, you act like you're getting dissatisfied with me,'' Avena told Stanfa in one conversation that prosecutors say showed Avena's complete fealty to the mob. ``If you want me to put my brains in the toilet, I'll put my brains in the toilet.''
In another, Avena is heard telling Piccolo, ``There's gonna come a day when I'm gonna ask for the badge,'' a reference, authorities claim, to Avena's desire to be a formally initiated mob member.
And in others, prosecutors contend, Avena counseled Stanfa about a mob war with a rival faction headed by Joseph ``Skinny Joey'' Merlino, urging him to take a tough stance.
``I say use the whip when it's time,'' Avena said in a May 6, 1993, conversation. ``I don't think you're showing the kind of strength you should.'' In another, he told Stanfa to ``go in the back door.''
Those conversations and others like them, prosecutors argue, show that Avena was more than a lawyer, that he went, in Courtney's words, from ``representation to participation'' in the violent criminal enterprise that was the Stanfa crime family.
Jacobs, in his opening, argued that much of what Avena said was distorted and taken out of context because of whom he represented. Avena, he said, was charged not because of what he did - which Jacobs has repeatedly described as functioning as a defense attorney - but because of the people he did it for - members of organized crime.
Another defense contention holds that Avena was ``a victim'' of organized crime, a contention that gets to the heart of the ``goodfellas'' tape and Sal Profaci's lengthy discussions about La Cosa Nostra.
Law enforcement officials privately concede that some of the best conversations picked up during the two years Avena's offices were bugged had only marginal importance to the substantive charges leveled against Stanfa, Avena and the others.
They are, however, crucial to a description of La Cosa Nostra as a criminal enterprise, an issue that is at the heart of the overall racketeering charge in the case and that Profaci, unwittingly, provided commentary on almost every time he opened his mouth.
``La Cosa Nostra's a beautiful thing if we respect it,'' he said in one conversation in which he lamented the loss of values and tradition within the organization.
``There's no honor when we kill one another,'' he said at another point.
``Unless a guy's a rat,'' he amended.
``Sure,'' said another wiseguy.
``Then it's honorable,'' said a third.
* The powerfully built Profaci, a gravelly voiced but well-spoken Mafia diplomat, had more than a passing interest in Avena's problems. Profaci's son was married to Avena's daughter. The New York mobster, son of the late mob boss Joseph Profaci, and the Camden criminal lawyer are in-laws.
That, in part, explains the sometimes highly emotional conversations between the two.
Profaci, in fact, dominated most of the discussions in which he took part, whether they were with Avena or with Stanfa, Piccolo and the other mob figures who authorities say met regularly in Avena's office to discuss and plot mob strategy.
On Dec. 5, 1991 - to the delight of FBI agents monitoring the tapes - Profaci outlined the mob's interest in a dispute between Avena and Carmine Franco, partners in two Philadelphia-based trash businesses.
Franco has been identified by law enforcement authorities as an associate of the powerful Genovese crime family and a point man for the mob in the highly lucrative trash-hauling and waste-disposal business. Franco, through his lawyer, has denied that allegation.
To the dismay of Profaci, Stanfa and the other wiseguys picked up on tape, Avena filed a lawsuit against Franco in January 1992. A few months later, Franco filed a counterclaim. Each accused the other of defrauding the business. And each alluded to the other's alleged mob ties.
Eventually, the suit was settled out of court. Terms of the settlement have never been disclosed. But for nearly 16 months, FBI agents got a behind-the-scenes account of how Profaci and other mob figures tried to iron out the problem ``in the court of honor'' rather than the ``court of law.''
Profaci said he didn't want to see Avena cheated, but he also said it was important to quietly end the litigation so the mob's hidden interest in the trash business would not be exposed. Otherwise, he implied, Avena's life could be in jeopardy.
``I'm trying to keep us alive, that's what I'm trying to do,'' Profaci said in one conversation picked up by the FBI as the dispute escalated.
In his opening, Jacobs said that Avena's decision to sue Franco demonstrated his independence from the mob and that despite pressure from organized crime - including possible death threats - Avena continued to seek an equitable and legal settlement.
Avena's perceived role in the dispute - as either a willing mob associate or a victimized mob target - could be crucial to how the jury interprets the tapes. The legal arguments will revolve around what was said and what was meant.
For example, Jacobs was quick to point out to the jury last week that later in the infamous and oft-quoted ``goodfellas'' tape cited by the prosecution, Avena balked at Profaci's proposal to settle the suit quietly.
Avena: What do you want me to be, some dunce?
Profaci: I don't wanna hear it. . . . I don't wanna hear it.
Avena: You want me to be some dunce . . . sittin' on the side of the desk.
Profaci: I am just tryin' to guide us through this thing in one piece, OK?
Avena: I don't know what that means.
Profaci: Because it's. . . . If you're no longer around, or I'm no longer around, we're gonna suffer tremendous. Our family suffers tremendously. . . . Whatever your financial damages will be, we will look to see how it's got to be compensated for. . . . That's . . . evidently that's the new rules of the game.
Avena: Well, I'm not gonna play those rules, Sal.