- 63 -
not disclosed by the record in that case, including the "physical
amenability to subpoena" of those witnesses. Id. at 625 & n.23.
Thus, Wynn merely indicates that physical amenability to subpoena
is simply one of a number of different factors to be considered
in determining whether an uncalled witness is within a party's
power to produce for purposes of the adverse inference rule. It
does not stand for the proposition that such a witness is always
beyond the power of a party to produce for purposes of that rule
when that witness is not subject to subpoena.
Petitioner has not cited, and our research has not dis-
closed, any case decided by the Court of Appeals for the District
of Columbia Circuit involving the adverse inference rule where
that court has considered a situation in which an uncalled
witness was beyond the subpoena power of the court.41 However,
41 We note that in Harry v. Safeway Stores, Inc., 215 F. Supp.
324, 325-327 (D.D.C. 1963), the U.S. District Court for the
District of Columbia, the court in accordance with whose rules of
evidence we conduct our trials, Rule 143(a), found that a jury
was permitted to draw a negative inference from a defendant's
failure to call a former employee who was apparently living in
Florida at the time of trial. That court found that the jury
could infer that that witness was peculiarly available to the
defendant because of the witness' past employment relationship
with the defendant, the defendant's apparent knowledge of where
the witness could be reached, and the lack of a satisfactory
explanation for his absence. Id. We note that, at the time the
Harry case was decided, Fed. R. Civ. P. 45(e) provided that a
subpoena for attendance at trial generally could be served within
the district where trial was held or within 100 miles of that
place. Fed. R. Civ. P. 45(e), 28 U.S.C. app. at 5167 (1958).
Accordingly, it seems that the missing witness in Harry v.
Safeway Stores, Inc., supra, was beyond the subpoena power of the
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