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On brief, petitioner alleges, and asks us to infer from the
record, that Mme. Koo's age, the length of the journey from Hong
Kong, where she allegedly resided, to San Francisco, where, at
the request of petitioner, trial was held, and the scheduling of
the trial herein prevented her attendance at trial.46 When the
46 We note first that petitioner could have requested, but did
not request, that trial be held in Hawaii, which might have ame-
liorated the alleged difficulty of Mme. Koo's traveling to San
Francisco where the trial was held. We also note that petition-
er's contentions appear to be inconsistent. If Mme. Koo's ina-
bility to attend trial was due to her age and the distance that
she may have had to travel to San Francisco, those circumstances
could not have been ameliorated by the scheduling of the trial.
Petitioner also suggests on brief that Mme. Koo made travel
plans in reliance on the Court's indication in a telephonic con-
ference call with counsel for the parties prior to the start of
the trial session on which these cases were calendared that it
would try to schedule the trial of these cases in the second week
of its session. Petitioner, in his application to take Mme.
Koo's deposition that was lodged with the Court on May 10, 1994,
well after the record in these cases was closed, further alleges
that Mme. Koo planned to travel to the United States on July 15,
1994. Petitioner's suggestion that Mme. Koo made travel plans in
reliance on the Court's comment in a telephonic conference with
counsel for the parties and his representation in his application
to take her deposition well after trial indicate that Mme. Koo
was able to travel, which undercuts petitioner's contention that
Mme. Koo did not testify because of the difficulty of traveling
from Hong Kong to San Francisco.
Petitioner's contention that Mme. Koo's failure to testify
was attributable to the scheduling of the trial in these cases is
contrary to the record herein. While the Court did indicate dur-
ing a telephonic conference with counsel for the parties prior to
the calendar call that it would attempt to schedule the trial in
these cases during the second week of its trial session in San
Francisco, it emphasized that it could not assure petitioner that
it could accommodate him by scheduling the trial during that
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