Ernesto Fernandez challenges the validity of his narcotics convictions. He contends that the district court committed reversible error when it failed to exclude certain testimony as a sanction for the prosecutor's failure to comply with a discovery order.1 For the following reasons, we remand the case to the district court for a full development of the facts and reconsideration.

On September 25, 1985, Ernesto Fernandez was indicted, in four counts, for knowingly and intentionally possessing cocaine, with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) (1981), for knowingly and intentionally importing cocaine into the United States, from a place outside thereof, in violation of 21 U.S.C. Sec. 952(a) (1981), and for conspiracy to commit these offenses, in violation of 21 U.S.C. Secs. 846 and 963 (1981) respectively. Fernandez was promptly arraigned and pled not guilty to these charges. On October 12, 1984, he filed a motion for a bill of particulars requesting, among other things, the names of "all co-conspirators, either named or unnamed, known to the Government."2 The magistrate denied the motion "except as to the names of the unindicted co-conspirators known to the Government." Trial was set for November 15, 1984.

Fernandez, however, filed a motion for continuance, complaining that the prosecutor failed to provide him with the names of any unindicted co-conspirators. The district court denied the motion.

At 10:30 p.m. on November 14, 1984, the day before Fernandez' trial began, the prosecutor telephoned defense counsel to inform him that a Colombian known only as "Marcos" was considered an unindicted co-conspirator. The following day, during the lunch recess, the prosecutor named "Merquiades" as another unindicted co-conspirator.3 Because the record reflected that the government knew of Marcos and Merquiades from the outset of its investigation, Fernandez moved to exclude any testimony referring to these unindicted co-conspirators as a sanction for failing to comply with the magistrate's discovery order.4 The district court denied the motion, noting that even if Fernandez had the names "500 years ago [he] could not find them in Columbia."5

The jury subsequently found Fernandez guilty on all counts. Thus, on December 20, 1984, the district court sentenced Fernandez to a term of imprisonment of seven years and a five year special parole term. This appeal promptly followed.

When a party in a criminal case fails to comply with a discovery order, the district court "may order such party to permit the discovery or inspection, grant a continuance or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances." Fed.R.Crim.P. 16(d)(2). A district court's decision concerning the imposition of a Rule 16(d)(2) sanction for the violation of a discovery order is a matter committed to the court's sound discretion. United States v. Campagnuolo, 592 F.2d 852, 858 (5th Cir.1979).6 Absent an abuse of discretion, the court's decision will not be disturbed on appeal. United States v. Burkhalter, 735 F.2d 1327, 1329 (11th Cir.1984). In exercising its discretion, however, the district court must consider several factors, and, if it decides a sanction is in order, "should impose the least severe sanction that will accomplish the desired result--prompt and full compliance with the court's discovery orders." United States v. Sarcinelli, 667 F.2d 5, 7 (5th Cir. Unit B 1982).7 Among the factors the court must consider

are the reasons for the Government's delay in affording the required discovery, the extent of prejudice, if any, the defendant has suffered because of the delay, and the feasibility of curing such prejudice by granting a continuance or, if the jury has been sworn and the trial has begun, a recess.

United States v. Euceda-Hernandez, 768 F.2d 1307, 1312 (11th Cir.1985) (citations omitted). Finally, the district court should determine and consider whether the prosecutor acted in bad faith in violating the magistrate's discovery order. See United States v. Soto, 711 F.2d 1558, 1563 n. 10 (11th Cir.1983).

Because of the failure of the government to fully advise the district court of its reasons for not complying with the magistrate's order, the judge reacted in a very understandable fashion in stating that even if Fernandez had the names he could not have found them in Colombia. As subsequent events now reveal, however, the government was actively investigating and pursuing both Marcos and Merquiades and, in fact, arrested Merquiades in the United States approximately one week after the trial of Fernandez was completed. It also appears now that there is a familial relationship between Fernandez and Marcos. Indeed, a full exploration of the facts may demonstrate that either the government or Fernandez could have easily located these individuals. But the government wanted nothing done to alert these same individuals concerning its ongoing investigation. Such a concern may have been fully justified but it was absolutely mandated that the government advise the district court, possibly in camera or ex parte, and seek relief from the discovery order.

In the interest of fairness and because of the developments subsequent to the district court's decision not to impose sanctions, we remand this case to the district court to develop a factual record and weigh the necessary factors outlined above to determine what relief, if any, Fernandez is entitled to.

It is clear that the prosecutor violated the magistrate's discovery order. This violation requires that the district court weigh and consider the factors cited above and take into account the unique circumstances of this case in fashioning the least severe, yet effective, sanction. See Euceda-Hernandez, 768 F.2d at 1312 (even "[t]he presence of a clear violation of a discovery order does not excuse a trial judge from weighing the factors.")

Accordingly, this case is remanded to the district court for further proceedings not inconsistent with this opinion.8

REMANDED.