DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
Before the Court is defendant Anthony Ighodaro's motion to preclude certain evidence and testimony because the Government released the Canadian rental car driven by defendant at the time of his arrest, before defendant had an opportunity to inspect the car, and the vehicle is now unavailable. For the following reasons, defendant's motion is denied in its entirety.
Relevant Facts and Procedural Posture
Defendant is charged in a two-count indictment with: (1) unlawfully importing into the United States a substance containing 3, 4-methylenedioxymethamphetamine ("MDMA") and 1-benzylpiperazine, a schedule I controlled substance, (in violation of 21 U.S.C. §§§952(a), 960(a)(1) and 960(b)(3)); and (2) fraudulently importing MDMA and 1-benzylpiperazine (in violation of 18 U.S.C. §545). (Dkt. No. 17)
According to the facts of the case, defendant attempted to enter the United States at the Peace Bridge port of entry on July 25, 2010. Defendant was driving a 2007 Pontiac G6 bearing license plates from Ontario, Canada. The vehicle had been rented from Economy Car and Truck Rental in Brampton, Ontario to an individual later identified as Gregory Grant. Grant was the sole driver listed on the rental agreement, but was not present in the vehicle at the time defendant attempted to enter the United States.
Defendant was initially questioned by Customs and Border officers. Because defendant was driving a rental car and was not listed on the rental agreement, he was escorted to secondary inspection. Agents found contraband secreted in the vehicle. Specifically, six bags of a substance containing MDMA were recovered from the bumper region of the rental car.
On November 17, 2010, the matter was referred to Magistrate Judge Jeremiah J. McCarthy for supervision of all pretrial proceeding. (Dkt. No. 18) Defendant was arraigned on November 23, 2010. (Dkt. No. 19) On May 30, 2011, defendant filed a motion to suppress physical evidence and statements made at the time of his arrest. (Dkt. No. 39) An evidentiary hearing was held before the Magistrate Judge and the parties had an opportunity to file post-hearing briefs. (Dkt. Nos. 50 and 52) On July 5, 2012, Magistrate Judge McCarthy issued a Report and Recommendation recommending that defendant's motion to suppress statements and physical evidence be denied. (Dkt. No. 62) On October 30, 2012, this Court adopted Magistrate Judge McCarthy's Report and Recommendation in its entirety. (Dkt. No. 71)
From November of 2012 through early January of - the parties sought a number of continuances in an attempt to explore a plea disposition. This Court conducted a status conference on January 11, 2013, at which time defense counsel indicated that he had reached an impasse with his client. Defendant requested new counsel and the Court denied defendant's request. Another status conference was held on March 11, 2013. At that time, defense counsel indicated that defendant's family had hired Canadian counsel and that he had met with the Canadian lawyer on March 8, 2013. Defense counsel sought to file one additional motion on behalf of his client, and the Court issued a briefing schedule.
On April 11, 2013, defendant filed the instant motion to preclude evidence and testimony based upon missing or destroyed evidence. (Dkt. No. 76) Specifically, defendant asserts that the 2007 Pontiac G6 rental car, driven by defendant on the day of his arrest, is no longer available for his inspection and investigation. Defendant maintains that the vehicle is material "to the issue of guilt or innocence and critical to the heart of the defense". Defendant further claims that the appropriate sanction is preclusion of testimony and evidence relating to the significance of the vehicle.
The Government opposes the motion on the grounds that defendant has not established any prejudicial effect, has not shown that the vehicle is material to guilt or innocence, and has not demonstrated any bad faith on the part of the Government. (Dkt. No. 77)
Spoilation is the destruction or significant alteration of evidence, or "the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 457 (2d. Cir. 2007). The Government has a duty to preserve discoverable evidence, and the Government's loss of evidence may deprive a defendant to his right to a fair trial. United States v. Rahman, 189 F.3d 88, 139 (2d. Cir. 1999).
The Second Circuit has found that the "appropriateness and extent of sanctions in such situations depends upon a case-by-case assessment of the government's culpability for the loss, together with a realistic appraisal of its significance when viewed in light of its nature, its bearing upon critical issues in the case and the strength of the government's untainted proof." United States v. Grammatikos, 633 F.2d 1013 (2d Cir. 1980) (the proper methodology in determining whether to preclude evidence due to the Government's failure to preserve is to ...