MEMORANDUM OPINION AND ORDER REGARDING THE IMPOSITION OF SANCTIONS AND THE PROSECUTION'S MOTION TO RECONSIDER

MARK W. BENNETT, District Judge.

On April 10, 2012, 853 F.Supp.2d 818, 2012 WL 1188456, I entered a Memorandum Opinion And Order Regarding Defendant Angel Amaya's Motion To Suppress GPS System (docket no. 350), in which I denied the motion to suppress, but found that Special Agent Jensen had acted in bad faith in failing to disclose the use of GPS monitoring in his reports regarding surveillance of Amaya. I set a hearing on sanctions for the prosecution's discovery violation for April 20, 2012, and requested briefing on the issue of what sanctions I may and should impose. Subsequently, the prosecution, on April 18, 2012, filed a Motion To Reconsider (docket no. 362) my finding that the agent acted in bad faith, and included in this briefing its arguments regarding what sanctions, if any, should be imposed. I moved the hearing on sanctions to April 30, 2012, and ordered that Amaya file any response to the prosecution's Motion To Reconsider by April 26, 2012. On April 19, 2012, Amaya filed his brief (docket no. 365) responding to my request for briefing on what sanctions should be imposed. The prosecution filed a response (docket no. 368) to Amaya's brief on April 24, 2012, and Amaya filed his resistance (docket no. 374) to the prosecution's Motion To Reconsider on April 26, 2012.

On April 30, 2012, I held a hearing on sanctions and the prosecution's Motion To Reconsider. Special Agent David Jensen testified, and both parties presented argument. I orally withdrew my finding that Special Agent Jensen acted in bad faith but indicated that a written order would follow, explaining my reasoning. After hearing Special Agent Jensen's testimony, I am convinced that, although he did not refer to the use of GPS devices in his reports, he did so in order to comply with the directives he had received from his DEA supervisors. Special Agent Jensen testified that, several years ago, after a few incidents in which agents referred to GPS devices in their reports, his supervisor specifically instructed all agents not to mention GPS devices in their reports. Special Agent Jensen has written his reports in compliance with that order ever since. Also, I find that the DEA policy I reviewed is, itself, somewhat confusing, in that it, on the one hand, directs agents to reveal what information they observed, but not how; yet, on the other hand, provides that agents should not create a situation in which defense counsel could suggest they are hiding evidence. Thus, any mistake on Special Agent Jensen's part in reading the policy was an honest one due to the wording of the policy, rather than bad faith. In its Motion To Reconsider, the prosecution also included excerpts from Special Agent Jensen's testimony at the preliminary detention hearing (which had not previously been provided to me), in which Special Agent Jensen indicated that he had used electronic surveillance of Amaya, which lends further credence to the prosecution's argument that Special Agent Jensen did not intend to hide evidence from Amaya. I am persuaded that Special Agent Jensen, when he did not refer to GPS devices in his reports, acted to comply with DEA directives, not in bad faith to hide evidence from the defense. Therefore, the prosecution's Motion To Reconsider my finding of bad faith (docket no. 362) is granted. I withdraw that portion of my opinion (docket no. 350 at 23-24), in which I found that Special Agent Jensen acted in bad faith.

I also impose no sanctions on the prosecution for its failure to disclose the use of GPS devices. I have evaluated the factors that district courts should consider when crafting sanctions for discovery violations, as identified by the Eighth Circuit Court of Appeals in United States v. Pherigo, 327 F.3d 690 (8th Cir.2003): "(1) whether the Government acted in bad faith and the reason(s) for delay in production; (2) whether there is any prejudice to the defendant; and (3) whether any lesser sanction is appropriate to secure future Government compliance." See id. at 694. First, I have determined that there was no bad faith on the part of the prosecution, as explained above. Second, the prejudice1 to Amaya has, for the most part, been remedied by the mistrial and the opportunity for Amaya to file a motion to suppress,2 as I have already noted in my prior opinion (docket no. 350). While I am sympathetic to Amaya's arguments regarding the additional cost that he has endured as a result of prolonged litigation, I note that his counsel has now been appointed, which should help to alleviate the continuing financial strain of trial. Third, I do not believe a sanction is necessary to ensure future compliance. Special Agent Jensen indicated that DEA policy has changed, after United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), so that agents will now indicate the use of GPS devices in their reports. Therefore, I have decided not to impose sanctions in this case.

THEREFORE, the prosecution's Motion To Reconsider my finding of bad faith (docket no. 362) is granted. I withdraw that portion of my opinion (docket no. 350 at 23-24), in which I found that Special Agent Jensen acted in bad faith. Additionally, I impose no sanctions on the prosecution.

IT IS SO ORDERED.