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[Micah68]

Marc Stevens Wrote:You think it's proper for a judge to not strike the testimony of a witness he declared incompetent? The whole thing should have been thrown out when the agent was declared incompetent by the trial judge. The trial judge and appeal judges conveniently ignore the whole decision was based on the testimony of a witness the trial judge ruled was "incompetent".

That's not what the judge said.

From the transcript that was attached to the judge's order, starting at page 4, line 13:

Judge William F. Downes Wrote:Third, Mr. Edwards moves to strike the declarations of IRS Agent Bruce Gilbert in support of the petition because Agent Gilbert is allegedly not qualified to be a witness against Mr. Edwards, citing to Federal Rule of Evidence 602. Rule 602 states that a witness may only testify about matters within his personal knowledge. Mr. Edwards claims that because Agent Gilbert could not answer meaningless questions posed by Mr. Edwards during the earlier meetings that he had with Mr. Gilbert, that he is not qualified as a witness.

For example, Mr. Edwards asked Mr. Gilbert whether he could, quote, prove that I am in the State of Wyoming with me sitting right here, close quote, referring to the document entitled "Evidence" filed by Mr. Edwards on August 15. Agent Gilbert could not fashion an answer to the question. Despite Mr. Edwards' efforts, he cannot show that Agent Gilbert lacks personal knowledge of the averments he made in his declaration.

Agent Gilbert's declaration states that he is conducting an investigation of income tax liability; that he served a summons on the respondent and that the respondent appeared but did not produce the documents. Clearly the agent has personal knowledge of the averments contained in his declaration. He is a qualified witness, and his declaration should not be stricken.

When (and where) did the judge say that the witness was "incompetent"?

It seems to be more likely that the judge said that the questions were incompetent.