DURHAM — A judge acquitted a Durham taxi driver of a misdemeanor charge related to a three-year-old shoplifting case that surfaced after the cabbie came forward as an alibi witness for one of the indicted Duke University lacrosse players.
District Court Judge Ann McKown found the state could not prove beyond a reasonable doubt that Moezeldin Elmostafa helped a woman steal five pocketbooks from a Hecht's department store at Northgate Mall in 2003. The woman later pleaded guilty. Elmostafa has maintained that he gave her a cab ride but didn't know anything about shoplifting.
In fact, he has said he didn't know there was a warrant for his arrest until he became a witness in the investigation of a reported rape at a Duke lacrosse team party. Elmostafa has signed a sworn statement saying that he gave a ride to Reade Seligmann and another player as the March party broke up.
Seligmann is one of three players indicted for rape, kidnapping and a sex offense. His attorneys have filed motions in court with Elmostafa's sworn statement, backed up by bank machine photos and telephone records that the lawyers say prove that Seligmann could not have committed rape.
Elmostafa was arrested on a misdemeanor larceny charge after he gave his account of that night to Durham police investigators. The arrest raised questions about whether District Attorney Mike Nifong was exerting pressure on a potential defense witness.
An investigator for the District Attorney's Office, Linwood Wilson, said he discovered the warrant on a routine check on Elmostafa, the kind of check he does on every witness the office encounters. Nifong has said his policy is to serve any outstanding warrants.
"It has nothing to do with putting any kind of pressure on him," Wilson said after the verdict.
The trial, which took up the better part of Tuesday, was infused with the lacrosse controversy. Tom Loflin, Elmostafa's lawyer, filed motions seeking to have the case thrown out, accusing Nifong of trying to get Elmostafa to change his story. And all day long, two investigators on the lacrosse case, Benjamin Himan and R.D. Clayton, sat in the courtroom.
"Why are they here? Supposedly they know zero about Hecht's, so why are they here?" Loflin said after the trial.
Wilson said he asked the investigators to be in the courtroom since Loflin's motions mentioned them, and Loflin briefly put Himan on the stand to ask about typed notes turned over to defense lawyers in the lacrosse case. Himan's notes state that "Mr. Nifong wanted to know when we picked [Elmostafa] up."
Wilson said the request came from him, not Nifong.
On Tuesday, a former Hecht's security officer testified that he saw the woman get into Elmostafa's cab, which sped away even before the woman could close the door. A surveillance tape showed that the cab did not start moving until the door was closed.
Jonathan Massey, the security officer, and police Investigator Vernon Harris testified that Elmostafa told them he knew what the woman had planned to do.
"I think if we use our common sense and take all of the evidence, we can see that he did know about this," Assistant District Attorney Ashley Cannon argued to the judge.
From the witness chair, Elmostafa denied any knowledge of the shoplifting.
As the trial wound to a close, Kirk Osborn, one of Seligmann's attorneys, entered the courtroom. After the verdict, he put an arm around the shoulder of his client's alibi witness.
"I just think it was the right verdict all along," Osborn said after the trial.
Osborn called Seligmann to tell him of the verdict. He would not comment when asked for Seligmann's reaction.
Staff writer Benjamin Niolet can be reached at 956-2404 or email@example.com.