- 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
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