United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 05-3599
                                ________________

United States of America,                *
                                         *
             Appellee,                   *
                                         *       Appeal from the United States
      v.                                 *       District Court for the Northern
                                         *       District of Iowa.
Araceli Martinez,                        *
                                         *
             Appellant.                  *

                                ________________

                            Submitted: March 13, 2006
                               Filed: May 12, 2006
                               ________________

Before COLLOTON, HEANEY and GRUENDER, Circuit Judges.
                       ________________

GRUENDER, Circuit Judge.


      Araceli Martinez pled guilty to possession with intent to distribute and aiding
and abetting the possession with intent to distribute cocaine base. On appeal,
Martinez challenges the determination of the district court1 that Martinez was
competent and the district court’s denial of Martinez’s motion to recuse. We affirm.



      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
I.    BACKGROUND


       Martinez was indicted for possession with intent to distribute and aiding and
abetting the possession with intent to distribute 50 grams or more of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2. A guilty plea
hearing was conducted before a United States Magistrate Judge2 on December 22,
2003. On January 16, 2004, the district court accepted the guilty plea in accordance
with the magistrate judge’s report and recommendation. Martinez was released on
bond pending sentencing. In June 2004, the district court granted a motion for
continuance of the approaching sentencing hearing to allow Martinez’s attorney,
JoAnne Lilledahl, to obtain a mental health examination of Martinez because
Lilledahl was concerned about Martinez’s ability to assist in her own defense. Kirk
Witherspoon, Ph.D., a clinical and forensic psychologist, interviewed Martinez in
July 2004 to assess her current mental status. In August, a warrant was issued for
Martinez’s arrest for noncompliance with the conditions of her bond.


        In January 2005, the magistrate judge granted Martinez’s pro se motion for
substitution of counsel, noting that Martinez was manipulative and “practiced an
amazing amount of deceit since she first entered the system” and that Martinez’s
deceit made it difficult for Lilledahl to represent her. On February 28, 2005, Martinez
filed a motion to withdraw guilty plea based, in part, on her alleged incompetence to
plead guilty. The hearing on her motion was scheduled for March 17, but Martinez
filed a motion seeking a continuance of the hearing to allow time for Dr. Witherspoon
to interview her a second time in order to offer an opinion on her mental competency
as of the date of the guilty plea hearing. The district court granted the motion, and
Dr. Witherspoon met with Martinez on March 25. On April 5, the magistrate judge


      2
       The Honorable John A. Jarvey, Chief Magistrate Judge, United States District
Court for the Northern District of Iowa.

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granted the Government’s motion for a competency evaluation of Martinez. Michelle
Hoy-Watkins, Psy. D., a clinical and forensic psychologist and contract employee
with the United States Bureau of Prisons, conducted the court-ordered psychiatric
evaluation and submitted a report to the district court in July.


       The district court held the hearing regarding Martinez’s motion to withdraw
guilty plea on August 9 and 10, 2005 (“August 2005 hearing”). The district court
heard from Martinez’s initial defense attorney, Lilledahl, as well as the two
psychologists who evaluated Martinez. Due to Lilledahl’s concerns about the
attorney-client privilege, Lilledahl testified only as to her standard practices in
representing criminal defendants. Lilledahl stated that if she thought a defendant was
under the influence of an illegal substance during a plea hearing, she would alert the
court that there was a problem with the proceeding. Lilledahl confirmed that she did
not alert the court in Martinez’s plea hearing or file an objection to the magistrate
judge’s report and recommendation that Martinez’s guilty plea be accepted.


       Dr. Witherspoon testified that he met with Martinez for two hours in July 2004
and for two and a half hours in March 2005. Dr. Witherspoon found that Martinez
understood the criminal charge and the possible penalties and generally
comprehended the legal system. He testified that depression is common among
defendants facing extended incarceration and that Martinez suffered from “a major
depressive disorder with extreme anxiety, which chances are is a product itself of
posttraumatic stress, substance abuse tendencies, underlying personality disorder.”
Dr. Witherspoon also found that Martinez had a “tendency to be untruthful on
numerous occasions” and “may well have grown manipulative and deceitful to
survive in a hostile and abusive environment.” Dr. Witherspoon opined that Martinez
had been incompetent to plead guilty on December 22, 2003, and was incompetent
at the current time.



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       Dr. Hoy-Watkins testified telephonically that as part of the court-ordered
evaluation process of Martinez, she spoke with the prosecutor and current defense
counsel, reviewed the records from the case, and conducted three different types of
testing during her meetings with Martinez. Dr. Hoy-Watkins met weekly with
Martinez during the 30-day evaluation period for a total of more than four hours. Dr.
Hoy-Watkins opined that Martinez was feigning severe psychological symptoms.
She also found Martinez to be manipulative and deceitful based on the court records
and inconsistencies in the information Martinez supplied to others and to Dr. Hoy-
Watkins. Dr. Hoy-Watkins concluded that Martinez had been competent at the time
of her guilty plea and was competent at present.


       Martinez filed a motion to recuse on September 2, 2005, asking Judge Reade
to recuse herself from the sentencing because of the appearance of partiality due to
Judge Reade’s law clerk, Teresa Baumann. Baumann served as the courtroom deputy
during the August 2005 hearing because the district court did not have a courtroom
deputy at that time as a result of a change in personnel. In her former position as
Special Assistant United States Attorney, Baumann had initiated the prosecution
against Martinez in October 2003. Baumann made no appearances in Martinez’s case
after December 8, 2003, when an Assistant United States Attorney replaced Baumann
in the case.


       On September 7, 2005, the district court issued an order denying Martinez’s
motion to withdraw her guilty plea and an order denying Martinez’s motion to recuse.
Following a sentencing hearing on September 7 and 16, the district court sentenced
Martinez to 168 months of imprisonment and 5 years of supervised release. Martinez
appeals the district court’s determination that Martinez was competent when she pled
guilty and at subsequent court proceedings and the district court’s decision not to
recuse.



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II.   DISCUSSION


      A.     Competency


       We first address Martinez’s argument that the district court erred in holding
that Martinez was competent to enter a guilty plea on December 22, 2003, and
proceed with sentencing. The district court’s finding that a defendant is competent
is reviewed for clear error. United States v. Robinson, 

, 1068 (8th Cir.
2001). “A finding is ‘clearly erroneous’ when although there is evidence to support
it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States v. Perry, 

,
786 (8th Cir. 2006) (quoting Anderson v. City of Bessemer City, 

, 573
(1985)).


       Due process prohibits a defendant who is mentally incompetent from making
a valid guilty plea, United States v. Premachandra, 

, 347 (8th Cir. 1994),
and from being convicted, United States v. Jimenez-Villasenor, 

, 559
(8th Cir. 2001). A defendant is competent if she possesses a “sufficient present
ability to consult with [her] lawyer with a reasonable degree of rational
understanding” and “has a rational as well as factual understanding of the
proceedings.” Dusky v. United States, 

, 402 (1960) (per curiam);
Godinez v. Moran, 

, 398 (1993) (holding that the Dusky standard for
competency to stand trial applies equally to competency to plead guilty).


       In determining the defendant’s competency, the “district court may consider
‘numerous factors, including expert medical opinions and the court’s observation of
the defendant’s demeanor.’” United States v. Denton, 

, 1112 (8th Cir.
2006) (quoting 

). The district court concluded that

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Martinez was competent after considering the expert medical opinions of the two
psychologists, the transcript of the plea hearing on December 22, 2003, and the
court’s independent observations of Martinez in the courtroom during the August
2005 hearing.


       Contrary to the contention of Martinez, the district court did not clearly err in
crediting the opinion of Dr. Hoy-Watkins over that of Dr. Witherspoon. With respect
to Martinez’s competency to enter the guilty plea, the district court explained that Dr.
Witherspoon evaluated Martinez’s current mental state and extrapolated backward
to December 2003. The district court found the approach of Dr. Hoy-Watkins to be
more reasonable because not only did Dr. Hoy-Watkins consider her observations of
Martinez during their meetings and the results of the tests she administered to
Martinez, but she also carefully examined the December 22 plea transcript in arriving
at the opinion that Martinez was competent to plead guilty. Similarly, the district
court credited the opinion of Dr. Hoy-Watkins that Martinez currently was competent
for sentencing. Based on her testing of Martinez, Dr. Hoy-Watkins found that there
was minimal to no impairment in Martinez’s logical reasoning or her ability to assist
counsel and appreciate her legal situation. The district court’s reliance on one of two
competing competency opinions given by qualified experts was not clearly erroneous.
See United States v. Ameri, 

, 899 (8th Cir. 2005); see also United States
v. Tucker, 

, 506 (8th Cir. 2001) (“Where there are two permissible views
of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”
(quoting 

)). Moreover, even Dr. Witherspoon testified that
Martinez generally understood her legal situation and the criminal justice system.


       The district court also found that nothing occurred during the December 22,
2003, change of plea hearing to suggest that Martinez was not competent to enter a
guilty plea. Martinez argues that her hesitation in answering several questions asked
by the magistrate judge during the hearing evidences her incompetency. However,

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each time the magistrate judge indicated that Martinez hesitated, he repeated the
question to ensure that Martinez understood the terms of the plea agreement and the
consequences of pleading guilty. Martinez responded appropriately to indicate that
she understood, and she did not ask any questions of the magistrate judge.
Furthermore, the magistrate judge found at the change of plea hearing that Martinez
was fully competent to enter the guilty plea.


      Finally, the district court considered its own observations of the defendant,
which can be as probative on the issue of competency as the testimony of a medical
expert. See 

. The court noted that Martinez
exhibited no unusual behavior at the August 2005 hearing. To the contrary, she was
relaxed, pleasant and smiling. She was responsive to the brief questioning by her
attorney and the prosecutor during the hearing. The district court also explained that
when the courtroom deputy inadvertently dialed a wrong number when attempting to
call Dr. Hoy-Watkins for her telephonic testimony, Martinez laughed along with
others in the courtroom.


       The district court explained in summary that Martinez’s attempts to portray
herself as incompetent were part of her “continuing pattern of dishonest and deceitful
behavior in order to avoid a prison sentence.” In light of the record viewed in its
entirety, the district court’s finding that Martinez was competent to enter her guilty
plea and be sentenced is not clearly erroneous.


      B.     Recusal


      We next address Martinez’s contention that the district court erred in denying
the motion to recuse because Baumann’s service as courtroom deputy at the August
2005 hearing created an appearance of partiality. We review the denial of a motion

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to recuse for an abuse of discretion. Moran v. Clarke, 

, 648 (8th Cir.
2002) (en banc). Under 28 U.S.C. § 455(a), a judge “shall disqualify h[er]self in any
proceeding in which h[er] impartiality might reasonably be questioned.” Section
455(a) provides an objective standard of reasonableness. United States v. Poludniak,

, 954 (8th Cir. 1981). The issue is “whether the judge’s impartiality
might reasonably be questioned by the average person on the street who knows all the
relevant facts of a case.” 

(quoting In re Kan. Pub. Employees
Retirement Sys., 

, 1358 (8th Cir. 1996)); see also Fletcher v. Conoco
Pipe Line Co., 

, 664 (8th Cir. 2003) (stating that “disqualification is
required if a reasonable person who knew the circumstances would question the
judge’s impartiality, even though no actual bias or prejudice has been shown”
(quoting United States v. Tucker, 

, 1324 (8th Cir. 1996))). Because a
judge is presumed to be impartial, a party seeking recusal bears the substantial burden
of proving otherwise. 

.


       In 2003, Baumann had presented Martinez’s case to the grand jury, signed the
indictment, represented the United States in the early pretrial phase of the
prosecution, and cross-examined Martinez at a suppression hearing. When Judge
Reade hired Baumann as a law clerk in July 2005, she assigned Baumann to work
exclusively on the civil docket and immediately screened her from the criminal
docket. In denying the motion to recuse, the district court explained that Baumann
“has not and will not have any involvement whatsoever with the undersigned’s
decisions in the case.” The mere presence of Baumann in the chambers of the district
court judge does not give rise to a reasonable question of impartiality. See Trammel
v. Simmons First Bank of Searcy, 

, 612-13 (8th Cir. 2003) (holding that
the district court did not abuse its discretion in refusing to recuse where the district
judge informed the parties that her law clerk, who was a friend of a party in the case,
had no involvement with the court’s handling of the case). The district court asked
Baumann to undertake the duties of courtroom deputy for the August 2005 hearing


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due to a staff shortage. Baumann served only ministerial functions in the courtroom
during the two-day hearing, including filling water jugs for counsel, placing phone
calls to interpreters and completing minute sheets for the proceedings. An average
observer who was informed of all the facts of Martinez’s case, including that
Baumann was screened from the case and performed only ministerial duties at the
hearing, would not reasonably question Judge Reade’s impartiality. We hold that the
district court did not abuse its discretion in denying the motion to recuse.


III.   CONCLUSION


       For the above reasons, we affirm the judgment of the district court.


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