                                                                     [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS
                      FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                                                          U.S. COURT OF APPEALS
                           ________________________
                                                            ELEVENTH CIRCUIT
                                                                MAY 16, 2001
                                 No. 00-12456                THOMAS K. KAHN
                             Non-Argument Calendar                CLERK
                           ________________________

                        D. C. Docket No. 99-01125-CV-SH

DAVID HARRELL,

                                                             Petitioner-Appellant,

                                       versus

ROBERT A. BUTTERWORTH,
Attorney General for the State of Florida,
MICHAEL W. MOORE,

                                                          Respondents-Appellees.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________
                                 (May 16, 2001)

Before ANDERSON, Chief Judge, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:
       David Harrell, a Florida prisoner, appeals the district court's denial of his

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On appeal, he

argues that his Sixth Amendment right of confrontation was violated when the trial

court permitted witness testimony via satellite transmission. For the reasons stated

below, we affirm.1

                                     I. BACKGROUND

       Harrell was charged with robbery and burglary. The victims, Pedro

Mielniczuk and Perla Scandrojlio, a married couple from Argentina, were robbed

near the Miami Airport while attempting to return their rental car. The couple was

lost and asked a man for directions. After being handed a map, the man reached

into the car and grabbed the couple's belongings. Before returning to Argentina,

Scandrojlio identified Harrell in a photographic line-up. Harrell, whose

fingerprints also matched the prints lifted from the map, was subsequently arrested

and tried for the crime.

       Prior to trial, the State requested to introduce the two victims' testimony via

satellite transmission. The State argued that the victims were unavailable to testify

at trial, because Scandrojlio was in poor health and because both victims resided in


       1
          We decline to address Harrell's ineffective assistance argument, because there is no
certificate of appealability with respect to that issue. See McIntyre v. Williams, 216 F.3d 1254,
1256 n.2 (11th Cir. 2000).

                                                2
Argentina and were unwilling to return to Florida. The trial judge agreed to allow

the testimony via satellite, over Harrell's objection.

      At trial, there were two cameras in the courtroom in Miami; one camera

filmed the jury and the other camera filmed the attorneys and the defendant. There

was also a screen in the courtroom that allowed those in the courtroom to see each

witness in Argentina. In Argentina, there was a camera that filmed the witness and

a screen that allowed the witness to see the courtroom in Miami. Thus, the witness

could see the defendant and the jury, and the defendant, who was in the courtroom

with the judge and jury, could see the witness. The oath was administered to each

witness by a deputy clerk in Miami, in the presence of the jury, the judge, and the

defendant. The witnesses did not speak English, so an interpreter was used.

      During the trial there were some minor technical difficulties. The visual

transmission of the witnesses' testimony was not simultaneous with the audio, so

there was an approximately one-second delay between what was said and what was

seen. There were also two instances in which the end of a question was cut off and

one momentary loss of the visual transmission in Argentina. Also, while

testifying, Scandrojlio looked to the right of the camera at an individual who could

not be seen on the screen. In order to remedy this problem, the trial court had the

camera focus on both the witness and the individual, who was the manager of the


                                           3
broadcast studio in Argentina from which the witnesses’ testimony was

transmitted.

         Harrell was subsequently found guilty and appealed his conviction to the

Third District Court of Appeal, which upheld the conviction. See Harrell v. State,

689 So. 2d 400 (Fla. 3d DCA 1997). The court held that there was no

Confrontation Clause violation, because the two-way transmission provided face-

to-face confrontation. See id. at 404. The court also found "that the jurors were

able to determine the credibility and demeanor of the witnesses testifying, even

during the brief period when the transmission was not perfectly synchronized." Id.

at 405. The court also certified the following question to the Florida Supreme

Court:

         Does the admission of trial testimony through the use of a live satellite
         transmission violate the Sixth Amendment to the United States
         Constitution, . . . where a witness resides in a foreign country and is
         unable to appear in court?

Id. at 406.

         The Florida Supreme Court answered the certified question in the negative

and approved the result reached by the Third District Court of Appeal. See Harrell

v. State, 709 So. 2d 1364 (Fla.), cert. denied, 525 U.S. 903, 119 S. Ct. 236 (1998).

While the Court concluded that the satellite procedure was not the equivalent of

face-to-face confrontation, it held that the procedure qualified as an exception to

                                            4
the Confrontation Clause. See id. at 1368-70. The Court began by recognizing

public policy reasons justifying an exception to face-to-face confrontation. First,

the witnesses lived beyond the subpoena power of the court and thus there was no

way to compel them to appear in court. The Court found this to be an important

consideration, because it was "clearly in [the] state's interest to expeditiously and

justly resolve criminal matters that are pending in the state court system." Id. at

1370. Second, there was evidence that one of the witnesses was in poor health and

could not travel to this country. Finally, the testimony of these two witnesses was

"absolutely essential to this case." The Court concluded that "[t]hese three

concerns, taken together, amount to the type of public policy considerations that

justify an exception to the Confrontation Clause." Id. at 1370. Next, the Court

concluded that the satellite procedure "satisfied the additional safeguards of the

Confrontation Clause – oath, cross-examination, and observation of the witness's

demeanor" – because the witnesses were placed under oath by a court clerk in

Miami; the defendant had an opportunity to cross-examine the witnesses; the jury

was able to observe the witnesses as they testified; and the witnesses could see the

jury. Id. at 1371. The United States Supreme Court denied Harrell’s petition for

writ of certiorari from the Florida Supreme Court’s decision. See Harrell v.

Florida, 525 U.S. 903, 119 S. Ct. 236 (1998).


                                           5
      In 1999, Harrell filed a federal habeas corpus petition pursuant to 28 U.S.C.

§ 2254 in which he argued, inter alia, that the trial court's admission of testimony

via satellite transmission violated his Sixth Amendment Confrontation Clause

rights. On April 4, 2000, a U.S. magistrate judge recommended that the petition be

denied. The district court agreed with this recommendation and denied the

petition. Harrell then requested a certificate of appealability, but the district court

denied the request. This Court, however, issued a certificate of appealability,

limited to review of the Confrontation Clause issue.

                                  II. DISCUSSION

      On appeal, Harrell argues that, because there were technical difficulties with

the satellite testimony, he was denied the opportunity to cross-examine the

witnesses fully, and the jury was unable to determine the witnesses’ credibility and

demeanor. The technical difficulties consisted of a one-second delay in the

synchronization of the audio and visual transmissions, two instances in which the

end of a question was cut off, and a momentary loss of picture in Argentina.

Harrell argues that the technical difficulties during the testimony were not harmless

error and that his conviction should be reversed as a result.

      We review a district court’s denial of a habeas petition under 28 U.S.C. §

2254 de novo. See Sims v. Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998).


                                           6
Because Harrell filed his federal habeas petition after the April 24, 1996, effective

date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), AEDPA’s

review provisions apply. See McIntyre v. Williams, 216 F.3d 1254, 1256 (11th

Cir. 2000). Under 28 U.S.C. § 2254(d)(1), “we can only reverse the district court

if we conclude that the state court’s decision was contrary to, or involved an

objectively unreasonable application of, the governing Federal law set forth by

Supreme Court cases. If we cannot so conclude, we must affirm.” McIntyre, 216

F.3d at 1257. See also 28 U.S.C. § 2254(d)(1).

      Thus, we turn to the Florida Supreme Court’s decision to determine if it is

contrary to or involved an unreasonable application of clearly established Federal

law, as determined by the United States Supreme Court.

      The Sixth Amendment’s Confrontation Clause provides: “In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.” The Supreme Court has “never held, however, that the

Confrontation Clause guarantees criminal defendants the absolute right to a face-

to-face meeting with witnesses against them at trial.” Maryland v. Craig, 497 U.S.

842, 844, 110 S. Ct. 3157, 3163 (1990) (holding that one-way closed-circuit

television testimony by a child witness in an abuse case may be consonant with the

Confrontation Clause). Instead, “the Confrontation Clause reflects a preference for


                                           7
face-to-face confrontation at trial, a preference that must occasionally give way to

considerations of public policy and the necessities of the case.” Id. at 849, 110 S.

Ct. at 3165 (internal quotations and citations omitted). “[A] defendant’s right to

confront accusatory witnesses may be satisfied absent a physical, face-to-face

confrontation at trial only where denial of such confrontation is necessary to

further an important public policy and where the reliability of the testimony is

otherwise assured.” Id. at 850, 110 S. Ct. at 3166. The requisite finding of

necessity is a case-specific one. See id. at 855, 110 S. Ct. at 3169. “The combined

effect of [the] elements of confrontation – physical presence, oath, cross-

examination, and observation of demeanor by the trier of fact – serves the

purposes of the Confrontation Clause by ensuring that evidence admitted against

an accused is reliable . . . .” Id. at 846, 110 S. Ct. at 3163.

      We conclude that the Florida Supreme Court’s decision was neither contrary

to, nor an unreasonable application of, clearly established Federal law as

determined by the United States Supreme Court. As an initial matter, we note that

we are bound by the state court’s factual determination that, despite technical

difficulties during the testimony, the jurors were able to evaluate the credibility and

demeanor of the witnesses. Factual findings of state courts are presumed to be

correct, and the petitioner can rebut this presumption only by clear and convincing


                                            8
evidence. See 28 U.S.C. § 2254(e)(1); Mincey v. Head, 206 F.3d 1106, 1130 n.58

(11th Cir. 2000). The Third District Court of Appeal found that “the jurors were

able to determine the credibility and demeanor of the witnesses testifying, even

during the brief period when the transmission was not perfectly synchronized.”

Harrell, 689 So. 2d at 405. Harrell has failed to rebut the presumption that this

factual determination is correct.

      The Florida Supreme Court’s decision was neither contrary to, nor an

unreasonable application of, Supreme Court law as set forth in Craig. The Florida

Supreme Court concluded that public policy considerations justified an exception

to face-to-face confrontation and, thus, that the first prong of the Craig analysis

was satisfied. See Harrell, 709 So. 2d at 1369. In support of this conclusion, the

Florida Supreme Court noted that: the witnesses lived beyond the subpoena power

of the court and thus there was no way to compel them to appear; it is in the state’s

interest “to expeditiously and justly resolve criminal matters that are pending in the

state court system;” one of the witnesses was in poor health and could not travel

from Argentina to the United States; and the two witnesses were “absolutely

essential” to the case. Id. at 1369-70.

      The Florida Supreme Court also concluded that the reliability prong of the

Craig analysis was satisfied. See Harrell, 709 So.2d at 1371. The Court noted that


                                           9
both witnesses were placed under oath by a court clerk in Miami; Harrell had an

opportunity to cross-examine the witnesses; the jury could observe the witnesses as

they testified; and the witnesses could see the jury. See id. Cf. United States v.

Gigante, 166 F.3d 75, 80 (2d Cir. 1999) (concluding that two-way closed-circuit

television testimony “preserved all of [the] characteristics of in-court testimony”

where the witness “was sworn; he was subject to cross-examination; he testified in

full view of the jury, court, and defense counsel; and [he] gave this testimony

under the eye of [the defendant] himself”).2

                                      III. CONCLUSION

       Because the Florida Supreme Court’s decision – that the witnesses’

testimony via two-way, closed-circuit satellite transmission did not violate his


       2
         In Gigante, the government sought to allow a witness to testify from a remote location
due to his illness and infirmity. See 166 F.3d at 79. The district court permitted him to testify
via two-way, closed-circuit television. During his testimony, the witness was visible on video
screens in the courtroom to the judge, the jury, defense counsel, and the defendant. See id. at 80.
The witness could see and hear the courtroom participants on a video screen at his remote
location. On appeal, the defendant argued that this procedure denied him of his right to confront
the witness in violation of the Sixth Amendment, but the Second Circuit disagreed and
concluded that the defendant’s confrontation rights had been adequately protected. See id. The
Second Circuit concluded that, because the two-way system used for the witness’s testimony
“preserved all of [the] characteristics of in-court testimony,” the Court did not need “to enforce
the Craig standard in this case,” because the Craig standard had been “crafted . . . to constrain the
use of one-way closed-circuit television, whereby the witness could not possibly view the
defendant.” Id. at 81.
        We need not decide whether the two-way closed-circuit testimony of the witnesses in this
case satisfies all of the characteristics of in-court testimony. However, we do note that the
Second Circuit’s approach in Gigante supports the Florida Supreme Court’s decision that
Harrell’s constitutional rights were not violated.

                                                 10
constitutional rights – was neither contrary to, nor an unreasonable application of,

Federal law set forth by Supreme Court cases, we

AFFIRM.3




      3
          Harrell’s request for oral argument is denied.

                                                 11
