Jailed Axelrod awaits Berlin hearing

Orchestra benefactor who fled tax fraud case has not decided whether to fight extradition

By MARK MUELLER
STAR-LEDGER STAFF

New Jersey philanthropist-turned-fugitive Herbert Axelrod remained in a jail cell in Germany yesterday, facing extradition to the United States and the possibility of a lengthy prison term if he is convicted of the federal tax fraud charges he fled two months ago.

Axelrod, 77, has retained a lawyer in Germany but has not yet issued a decision on whether he will fight efforts by the U.S. Attorney's Office in Newark to bring him to trial in the United States, said his New Jersey criminal lawyer, Michael Himmel.

The lawyer said he had not yet spoken with Axelrod, arrested at Berlin's Tegel Airport Tuesday evening as he stepped off a flight from Zurich, Switzerland, where he and his wife own a home.

Apparently traveling on his own passport, Axelrod was flagged by police because his name appeared on an Interpol list of known fugitives.

The U.S. Attorney's Office released no additional details yesterday about the arrest or Axelrod's travels in recent weeks. The former Monmouth County resident was in Cuba in late April.

Himmel said he believes Axelrod was traveling alone when police stopped him and that he was being held in a detention center in the Berlin area.

"I anticipate sometime in the not-too-distant future I will be communicating with his lawyer," Himmel said.

A court hearing in Germany has not been scheduled, he said.

Axelrod, a violin collector best known for selling rare 17th- and 18th-century violins, violas and cellos to the New Jersey Symphony Orchestra last year, was indicted April 12 on two tax fraud counts alleging he helped an employee hide cash from the Internal Revenue Service.

When Axelrod failed to appear at his April 21 arraignment, a federal judge in Trenton issued a warrant for his arrest.

Axelrod's flight from the charges is certain to complicate his defense in the tax case.

If authorities can establish that Axelrod intentionally fled the country to avoid prosecution, it reflects a "consciousness of guilt" that can be used against him at trial, said Kevin Marino, a criminal defense lawyer well- versed in white-collar crimes and tax cases.

"That's one reason why fleeing really places you in far worse circumstances," Marino said. "Consciousness of guilt is generally considered powerful evidence."

In addition, a defendant who flees often loses the ability to negotiate with prosecutors, the lawyer said.

Axelrod could be sentenced to five years in prison if convicted of the two counts. Had he faced the charges and been convicted, it is likely he would have been handed a lesser sentence.

Under sentencing guidelines, Axelrod likely would have been subject to a term of about 13 months, said Frank Agostino, a Hackensack tax attorney who formerly prosecuted cases for the IRS.

That sentence might have been cut even further if the trial judge took into consideration Axelrod's age, his lack of a criminal record and his long record of philanthropy, Agostino said.

"If the judge grants a departure from sentencing guidelines, then it's the judge's discretion what the sentence should be," Agostino said. "He could have given him home confinement. He could have given him community service.

"Basically, it was stupid for him to flee."

PHOTO CAPTION: AXELROD