The Intimidation of Elmo - Versions I - V

Version I (Mike Nifong) - Nifong directs Linwood Wilson to do background check on Seligmann alibi witness Elmostafa. Linwood, in turn, finds the warrant and presents it to Nifong, Inv. Ben Himan, and Sgt. Mark Gottlieb. Nifong says warrant needs to be served.

Doug Brocker (at Mike Nifong's State Bar deposition): At some point you talked about your becoming aware through the alibi defense that Mr. Seligmann had a witness who was a cab driver who corroborated his story about where he was.

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Mike Nifong: I actually think that I may have first heard of Mr. Mostafa through a newspaper article, but I'm not certain about that.

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Brocker: And at some point did you direct Mr. Wilson to do a background investigation on Mr. El Mostafa?

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Nifong: I did.

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Brocker: And why did you do that?

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Nifong: Because it's what we would do with respect to any person that we believe is potentially a witness in a case we're investigating.

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Brocker: Okay. And he found a warrant outstanding against Mr. ElMostafa?

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Nifong: He did.

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Brocker: And did you direct that the Durham Police Department serve that warrant against him?

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Nifong: My recollection is that I was in a meeting with Mr. Himan and Mr. Gottlieb and Investigator Wilson came and said that he'd found a warrant and I said, "Well, we need to get it served," because it's our policy, anytime we find an outstanding warrant on somebody, to serve it. And they said that they would take care of it. That case did, in fact, get tried. We had, among other things, videotape evidence, and it was a pretty good case, although he was found not guilty.

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Brocker: Do you know whether or not Mr. Wilson contacted the police department on several occasions asking whether or not the warrant had been served?

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Nifong: I wouldn't have any involvement in that. I don't believe that I had -- I believe that the only involvement I had with Mostafa was just to say that that warrant needs to get served.

Version II (Mark Gottlieb) - DA's office finds warrant and asks Himan and Inv. RD Clayton to serve it. Gottlieb did not learn of the warrant in a meeting with Nifong. Wilson visited DPD to ask for warrant to be served.

Doug Brocker (at Mark Gottlieb's State Bar deposition): Looking back at the end of your notes, Page 32 --

Mark Gottlieb: Yes, sir?

Brocker: --- you have a note in there that Investigator Clayton and Himan came to you about information that the cabdriver, who was the short-term alibi witness for Mr. Seligmann, had an active arrest warrant outstanding?

Gottlieb: Yes, sir.

Brocker: Tell me about that.

Gottlieb: They came into my office early in the morning the day -- I mean, it was as busy as could be. They basically said the DA's office located a warrant for him and they wanted the man picked up. And I just said, "Get it done quickly and get back here." I didn't care, it was a warrant for the man's arrest. Go pick him up.

Brocker: Do you know how long that warrant had been outstanding?

Gottlieb: From my understanding, it was out, and this is after the fact, a couple of years. And the reason it didn't show up when people were checking for warrants was there was a letter spelled different in his name. But the other information--Social Security number, things of that nature--matched, but we don't check the warrants based on that.

Brocker: Do you know where the investigation of him originated of Mr. Moustafa, if I'm pronouncing that correctly?

Gottlieb: The investigation originated?

Brocker: I mean, the fact of looking for outstanding warrants against him.

Gottlieb: Somewhere in the DA's office, it wasn't US.

Brocker: Do you know who communicated that to your Department?

Gottlieb: Linwood Wilson.

Brocker: Did Mr. Wilson, come down and ask or direct the Department to do certain things during the investigation, going forward?

Gottlieb: Well, he asked about the warrant being served.

Version III (Ben Himan) - Linwood finds warrant after Himan looked for one and came up empty. Linwood asks for it to be served on behalf of Nifong. Warrant presented after Nifong leaves meeting with Himan and Clayton (not Gottlieb). Linwood pesters Himan to serve the warrant in the days that follow.

Ben Himan (in his State Bar deposition): May 8th I went up there. And that’s the first time I remember meeting Linwood Wilson. I mean, we were in the conference room. Mr. Nifong actually walked out of the room and Linwood Wilson was there and he started telling us about how there was a warrant for Mr. Mostafa. And he said that -- I think Clayton or I said, “Okay. We’ll take care of it.” And he said that he wanted -- he wanted to be notified when we picked him up. And he said Mr. Nifong wanted to be notified when we picked him up.

Brocker: Was the information about the outstanding warrant something that Mr. Nifong or Mr. Wilson had found independently?

Himan: Yes. Mr. Linwood Wilson had found the warrant….I believe I had given him some background information on him. And I think that’s when -- actually, I was getting background information on him, and Linwood had told us about it…I think it was from 2003, court docket…I know Linwood tried to contact me again to go serve it, I am trying to figure out what date that was. 5/9, he contacted me again….He stopped by the office to pick up the transportation report that I had on Mr. Elmostafa, and he said that -- again, he said he wanted -- Nifong wanted to know when we picked him up. I didn’t think it was that pressing a need to go arrest him, and I said we would do it that next morning…I don’t know if [it - that Nifong had wanted a warrant from 2003 served on what had been identified as a potential alibi witness] raised concerns. I mean, if he had a warrant, he had a warant. It’s the -- usually when we do backgrounds, we will find warrants on witnesses and stuff like that…It was unusual that I didn’t find it, because, I mean, I did look them up. I don’t know how he was able to find it. That was probably because of the different name that I was looking under.

Version IV (R.D. Clayton) - Investigator R.D. Clayton's notes omit reference to a May 8, 2006 meeting with Nifong, Himan, and Wilson. Clayton notes no case activity from May 2, 2006 until May 10, 2006.

5/2/2006 1045 Hours

Located victim's ex-husband at 605 N. Driver St. I transported him to station two for Investigator Himan.

5/10/06 1345hrs

Warrant for arrest was confirmed and obtained from the magistrates office. Mr. Mostafa (suspect) was not at his house - apartment 1803 Chapel Hill Rd. Apt. D. Investigator Himan called Mr. Mostafa and requested that he came home so they could talk.

Version V (Linwood Wilson) - Anonymous or unknown tipster from within DA's office or maybe the Clerk's office leads Wilson to warrant by suggesting that Elmostafa may have written a bad check. He presents warrant in meeting with Gottlieb, Himan, Nifong, and Candy Clark. Alternately, he or Nifong hands warrant to Himan or Gottlieb. Wilson didn't expect Himan and Gottlieb to serve the warrant themselves.

Linwood Wilson (in his State Bar deposition): What happened--what happened was someone, and I don’t remember if it was in our office or if it was a clerk. Someone called the worthless check office and actually told me that I needed to check the computer because there was an outstanding warrant on Mr. Mostafa. So I did that, and there was an unserved warrant on him.

Katherine Jean: When you say the clerk’s office, are you talking about the Durham County clerk of court’s ---

Wilson: Yes, ma’am.

Jean: Is there any way you can ascertain who it was that brought this to your attention?

Wilson: I don’t recall making notes. It was--somebody called, either left it on my voice mail or spoke with me. And I mean I have the screen, you know, on my computer right there as far as the ACIS screen, the computerized court AOC screen that tells if there are outstanding warrants and what they are, if they’ve been served or whatever. And so I put the name in, and it came up with an unserved warrant on Mr. Mostafa. So---…I went upstairs--I printed the screen out. I went upstairs, was going to see Mr. Nifong. When I went into the hall that goes to his office, I saw him and Investigator Himan and Sergeant Gottlieb and I believe--and I believe Candy Clark in the conference room. And that is actually the first time I had met Gottlieb or Himan…And I--when I walked in, they quit talking. And Mike looked at me and I said, “I have a copy of a warrant, you know, in the system. The system says that there’s a warrant on the cab driver.” And I said “What do you want me to do with it?” And he said, “Give it to them.” And I gave it to--I handed it to either Gottlieb or Himan. I had already called and verified that it did--that it was in fact still outstanding and that it was located--I actually talked with Chet Dobies, who is the chief magistrate. And he located the warrant in the magistrate’s office. So I gave them the copy of that and they said that they were going to have it served….He[Nifong] handed it to them and said, you know, “Have this served.” And I was under the assumption and--I was under the assumption that they were going to go to their warrant control and just have uniform police serve it.

Jean: Okay. Now, you said you didn’t recall who it was, but that somebody perhaps in the clerk’s office, or where, had brought this warrant to your attention? Who was the other possible source?

Wilson: Well, the only other possible source would have been our office. I just recall that somebody either called me--I know somebody called me. I just don’t remember specifically if I talked to them on the phone or if they left the message and when I got the message I put the name in and sure enough it was there. It was just spelled with a c instead of a z, as I recall…I’m trying to remember. As I’m sitting here thinking, I believe they told me to check for a worthless check on him. The person said check for a worthless check on him. And when I checked, it wasn’t a worthless check. It was a larceny or aiding and abetting and a larceny thing that either Thalheimer’s or Hecht’s had taken out--I believe it was Hecht’s--had taken out a warrant on him. ...After that [meeting with Nifong, Himan, Gottlieb] happened, I was doing--some of the things I was doing in addition to the worthless check thing was running background record checks and those kinds of things on witnesses, people that we knew were becoming--players or people involved in that case. And so when I would have some down time, I would run those names and see if anybody had any records or what those was and, you know, print that stuff out. And I--after talking-after the warrant thing came up on him, I talked with one of the investigators about getting copies of his records from the lady at city hall that licensed taxicab drivers to see obviously if there was any complaints or anything there. And they said they hadn’t got any. So I went over and got copies of that, which, you know, everything that they had is here. Then I found out from going through the file that the police had in fact already done that. So that was kind of duplication, but I did do that.