In Re Grand Jury Proceedings: Todd McElhinney Witness. Todd McElhinney Witness v. United States

REVISED OPINION

Todd McElhinney appeals an order of confinement for contempt of court after his refusal to testify before a federal grand jury. Following his claim of privilege, he was granted immunity and ordered to testify. He continued to refuse, contending that the government had illegally monitored his telephone. We vacate the order and remand for further proceedings.

The government acknowledged use of a court-ordered wiretap, and McElhinney requested disclosure of the following documents for the purpose of a limited hearing on the legality of the surveillance: (1) the application of the Attorney General or his representative for authority to conduct the surveillance; (2) the affidavit in support of the application; (3) the court order authorizing surveillance; (4) the affidavit describing the duration of the surveillance.

The court denied the request and reviewed the documents in camera. Based on its examination, the court concluded that the surveillance was legal and that to allow other than in camera review would unduly delay the grand jury’s investigation.

The Supreme Court has held that a grand jury witness charged with civil contempt may assert in defense the…