In Re: Civil Investigative Demand No. DNM 23-02
OMNIBUS ORDER by District Judge Margaret I. Strickland ADOPTING 14 Proposed Findings and Recommended Disposition, DENYING 1 Petitioner's Petition to Set Aside a Second Civil Investigative Demand for her Oral Testimony, GRANTING 7 United States' Cross-Petition to Enforce Civil Investigative Demand DNM 23-02, and CLOSING CASE. (gri)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
IN RE CIVIL INVESTIGATIVE DEMAND
No. DNM 23-02,
OMNIBUS ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED
DISPOSITION, DENYING PETITIONER’S PETITION TO SET ASIDE A SECOND
CIVIL INVESTIGATIVE DEMAND FOR HER ORAL TESTIMONY, GRANTING
UNITED STATES’ CROSS-PETITION TO ENFORCE CIVIL INVESTIGATIVE
DEMAND DNM 23-02, AND CLOSING CASE
THIS MATTER is before the Court on United States Magistrate Judge Damian Martínez’s
Proposed Findings and Recommended Disposition (“PFRD”), filed October 4, 2023, ECF No. 14,
Petitioner Sara Sanchez’s Objection, ECF No. 15, and the United States’ Response, ECF No. 16.
Pursuant to 31 U.S.C. § 3733(a)(2)(G), the United States Attorney’s Office has issued a
second Civil Investigative Demand (“CID”) to Sanchez which requires that Sanchez appear and
give oral testimony relevant to an investigation brought under the False Claims Act.1 ECF No. 62. Briefly, the Government is investigating Noble Sales Co., Inc. (“Noble”), a company that
operated a supply store at Cannon Air Force Base, for allegedly providing fraudulent quotes to the
Government in violation of the False Claims Act, 31 U.S.C. §§ 3729-33. Sanchez was Noble’s
purchasing agent from 2013 through 2015, and store manager from 2015 through 2020.
Sanchez has filed a Petition asking the Court to quash the CID. ECF No. 1. The
Government has filed a Cross-Petition asking the Court to enforce the CID. ECF No. 7. Judge
Martínez recommends denying Sanchez’s Petition and granting the Government’s Cross-Petition.
On August 9, 2022, Sanchez gave oral testimony relevant to the same investigation pursuant to a
separate CID. ECF No. 14 at 1.
Sanchez has filed a single Objection to the PFRD. ECF No. 15. As relevant to the
Objection, the statute governing CIDs provides:
The Attorney General shall not authorize the issuance under this section of more
than one civil investigative demand for oral testimony by the same person unless
the person requests otherwise or unless the Attorney General, after investigation,
notifies that person in writing that an additional demand for oral testimony is
31 U.S.C. § 3733(a)(2)(G). In this regard, the Government’s CID states:
After investigation, it has been determined that additional oral testimony from you
is necessary. Through its investigation, the Government has identified additional
transactions and topics of interest related to the COCESS facility. The Government
also seeks to examine you regarding your previous testimony to clarify issues raised
in the Government’s subsequent investigation.
ECF No. 6-2.
Judge Martinez found that the CID complies with the statute because it “reflects that the
U.S. Attorney requires Sanchez’s testimony ‘to discover [her] knowledge regarding the operations
of the [Supply Store]’ while working for Noble[,]” and there is evidence “that establishes
Sanchez’s experience in and position at Noble relevant to the investigation[.]” ECF No. 14 at 12.
In her Objections, Sanchez argues that “by construing § 3733(a)(2)(G)’s command that
‘more than one civil investigative demand for oral testimony by the same person’ be ‘necessary’
as meaning nothing more than mere relevance, the Magistrate Judge’s analysis renders this explicit
statutory restriction meaningless, in violation of the binding authority governing statutory
construction.” ECF No. 15 at 3. Sanchez argues that the Court must decide whether an additional
demand for oral testimony is actually necessary, and requires
an investigation of the circumstances – such as (a) the record of the first
examination, (b) the additional information the Government intends to obtain at the
second examination, (c) why that information was not obtained at the first
examination, (d) the importance of obtaining the information in light of what the
Government already has obtained, (e) other available sources for the information,
and (f) the likelihood of obtaining the information at a second examination – as
well as a good faith determination that there is a unique justification for
commanding the witness to reappear.
Id. at 4. She further maintains that for various reasons, further testimony is unnecessary in this
case. Id. at 4-6. She further argues, for the first time, that if the Court denies her Petition it should
“limit the Government to making its record of [her] invocation of her right not to be a witness
against herself remotely in a Zoom proceeding and at a date and time that does not conflict with
her work schedule.” Id. at 6-7.
Pursuant to Federal Rule of Civil Procedure 72, “[t]he district judge must determine de
novo any part of the magistrate judge’s disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); accord 28
U.S.C. § 636(b)(1).
Upon de novo review of the PFRD and Sanchez’s Objections, the Court finds that
Sanchez’s construction of 31 U.S.C. § 3733(a)(2)(G) is unsupported by the plain language of the
statute and the relevant law. The Court agrees with the Government that “[t]he statute, by its plain
language, does not authorize, much less require, an inquiry into the particulars of an executive
branch investigation; rather, it requires only that, after investigation, the issuing official ‘notifies
that person in writing that an additional demand for oral testimony is necessary.’” ECF No. 16 at
2. See also United States v. Seitz, No. MS2–93–063, 1993 WL 501817, at *4 (S.D. Ohio Aug. 26,
1993) (“Neither the legislative history nor the statutory language indicates a congressional intent
that the Court make a determination that the Attorney General found that issuance of the [CID]
was absolutely necessary and that that finding was supported by the circumstances known to the
Attorney General before enforcing the [CID].”). “The CID statu[t]e does not vest this Court with
the authority to ‘substitute its judgment for that of the Attorney General,’ but rather leaves ‘to the
discretion of the Attorney General the decision whether issuance of a CID is necessary.’” United
States v. Plavin, CIVIL ACTION NO. 1:15-CV-04286-SCJ, 2016 WL 11775141, at *4 (N.D. Ga.
Apr. 6, 2016) (quoting United States v. Witmer, 835 F. Supp. 208, 218 (M.D. Pa. Oct. 8, 1993)).
Therefore, the Court denies Sanchez’s Petition and grants the Government’s Cross-Petition.
Finally, Sanchez’s argument that the Court should “limit the Government to making its
record of [her] invocation of her right not to be a witness against herself remotely in a Zoom
proceeding and at a date and time that does not conflict with her work schedule[,]” ECF No. 15 at
6-7, which was raised for the first time in her Objections, is not properly before the Court. Marshall
v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the
magistrate judge’s recommendation are deemed waived.”). However, in its Response to Sanchez’s
Objections, the Government states that it “is willing to accommodate Ms. Sanchez with respect to
location[,]” and “is willing to conduct the CID examination in person” in Midland-Odessa, Texas,
where Sanchez appears to reside. ECF No. 16 at 5. The Court will Order the Parties to work
together in good faith to set an in-person CID examination.
Accordingly, IT IS HEREBY ORDERED that:
1. Sanchez’ Objections to the PFRD, ECF No. 15, are OVERRULED;
2. The Magistrate Judge’s PFRD, ECF No. 14, is ADOPTED;
3. Sanchez’s Petition, ECF No. 1, is DENIED;
4. The United States’ Cross-Petition, ECF No. 7, is GRANTED;
5. Counsel for the parties shall work together to set an in-person CID examination;
6. All pending Motions are DENIED AS MOOT; and
7. This case is now CLOSED.
MARGARET I. STRICKLAND
UNITED STATES DISTRICT JUDGE
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