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other U.S. Courts of Appeals have addressed situations where
uncalled witnesses were beyond their subpoena power and have
concluded that an adverse inference may be drawn against a party
from the failure to present a witness even where that witness may
not be subpoenaed by that party. See United States v. Martin,
696 F.2d 49, 52 (6th Cir. 1983); United States v. Lehmann, 613
F.2d 130, 135-136 (5th Cir. 1980); see also A.B. Dick Co. v.
Burroughs Corp., 798 F.2d 1392, 1400 & n.9 (Fed. Cir. 1986). For
example, in Martin, the Court of Appeals for the Sixth Circuit
concluded that the friendship with one of the parties of certain
uncalled witnesses who lived in Canada rendered those witnesses
within the power of that party to produce, notwithstanding that
those witnesses were beyond the subpoena power of the Federal
courts.42 United States v. Martin, supra.
We have found based on the record in these cases that
petitioner and Mme. Koo had close and amicable business and
41(...continued)
District Court for the District of Columbia.
42 For purposes of applying the adverse inference rule, other
courts have concluded that the question whether a witness is
within the power of a party to produce is generally to be deter-
mined by taking account of various factors, including the wit-
ness' accessibility to the service of a subpoena upon him and the
relationship of the witness to that party. See United States v.
Johnson, 467 F.2d 804, 808-809 (1st Cir. 1972); McClanahan v.
United States, 230 F.2d 919, 926 (5th Cir. 1956).
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