Anthony Teong-Chan Gaw as Transferee of Radcliffe Investment LTD. - Page 166

                                                 - 64 -                                                    
            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).                                              




Page:  Previous  54  55  56  57  58  59  60  61  62  63  64  65  66  67  68  69  70  71  72  73  Next

Last modified: May 25, 2011