NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 16

- 3660

_____________
UNITED STATES OF AMERICA

v.
GARY BATTAGLINI

Appellant

______________ Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No. 2

- 09

- cr - 00496

- 0 11 ) District Judge: Hon

. Eduardo C. Robreno

______________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

March 09, 2018

______________ Before: McKEE , AMBRO, and RESTREPO, Circuit Judges

.

(Opinion filed: October 23, 2018 )

_______________________ OPINION 

_______________________

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

M c KEE, Circuit Judge. Gary Battaglini appeal s the judgment of sentence following his conviction for

r acketeer ing and related offenses. He argues that the District Court erred in allowing recorded conversations to be admitted into evidence. For the reasons that follow, we will
affirm.

I. 1

We first consider Battaglini’s contention that his Sixth Amendment r ight to confront witnesses was violated by admission of recorded conversations. T he
Confrontation Clause of the Sixth Amendment bars out

- of

- court state ment s that are
testimonial , unless the witness is unavailable and the defendant had a prior opportunity to

cr oss - examine the witness. 2 “The Clause

. . . does not bar the use of testimonial

state ment s for purposes other than establishing the truth of the matter asserted.” 3 Therefore, “[t]his right applies only to testimonial statements offered for their truth.” 4
Here, in order to establish a Confrontation Clause violation, Battaglini must show the statements in the recordings were both testimonial and hearsay. The District Court
concluded that the recorded statements were offered to establish context and not for the ir
truth , and were t herefor e outside the scope of the Confrontation Clause. 5 W e agree.

1 The District Court had subject

- matter jurisdiction over the case pursuant to 1 8 U.S.C. § 3 2 31 . We have appellate jurisdiction to review the District Court’s final sentence under 28 U.S.C. § 1 291 and 1 8 U.S.C. § 3742. 2 Crawford v. Washington , 541 U.S. 36, 68 (2004). 3 Id. at 77 n.9 (citing Tennessee v. Street , 471 U.S. 409, 414 (1995) )

. 4 Lambert v. Warden Greene SCI , 861 F.3d 459, 469 (3d Cir. 2017). 5 United States v. Hendricks , 395 F.3d 173, 182

– 84 (3d Cir. 2005).3

In Hendricks , a confidential informant who died prior to trial had recorded
conversations with the defendant. 6 We held that the Confrontation Clause did not bar the
informant’s recorded statements from being admitted into evidence because the
government was no t introducing the m for the ir truth ; rather, the statements were necessary

to establish context . We explained : Under these circumstances, we conclude that the Government should be pe rmitted to introduce the balance of the conversations, i.e., the statements of [the] CI

. . . which, as the Government argues, put the statements of the othe r parties to the conversations into perspective and make them intelligible to the jury and recogniz able as admissions.
We thus hold that if a Defendant or his or her coconspirator makes statements as part of a reciprocal and integrated conversation with a government informant who later becomes unavailable for trial, the Confrontation Clause does not bar th e introduction of the informant’ s portions of the conversation as are reasonably required to place the defendant or coconspirator’ s nontestimonial statements into context. 7 Despite the unavailability issue addressed in Hendricks , we focused primarily on
the fact that the statements were necessary to put statements of others into perspective. Moreover, since the recorded statements here were not hearsay, there is no need to address
whether the statements were testimonial

. 8

I I.

6 Id. at 176. 7 Id. at 184 (internal citations and quotations omitted). 8 United States v. Wright , 739 F.3d 1160, 1170 (8th Cir. 2014) (“[I]n order to fall within the purview of the Confrontation Clause, the evidence not only must be testi monial but also must be offered for the truth of the matter asserted.”).4

Batt aglini also argues that the government committed a Brady 9 violation by suppressing information related to the informant’s contradictory statements

. To prove a Brady violation, the defendant must establish that: (1) the government suppressed or
withheld evidence; (2) which was favorable to the defendant; and (3) material to the
defense. 10 Brady claims involve mixed questions of law and fact

. W e review questions of law
de novo and the District Court’s factual findings for clear error. 11 Battaglini failed to raise
the Brady claim in the District Court. We review unpreserved Brady claims for plain

error

. 12 W e have declined to review Brady claim s where , as here, no record was created in
the district court. 13 Such unpreserved claims are largely unreviewable because the appellate record lacks the necessary findings of fact from the district court. We conclude that Battaglini’s Brady claims are unreviewable in light of the dearth of factual findings in the rec ord. For example, the parties disagree about whether the alleged Brady material was disclose d in a timely manner and whether counsel had the opportunity to cross

- examine. We cannot assess these claims ab sent factual findings from
the District C ourt.

I I I
.

9 Brady v. Maryland , 373 U.S. 83 (1963). 10 United States v. Perdomo , 929 F.2d 967, 970 (3d Cir. 1991). 11 United States v. Claxton , 766 F.3d 280, 303 (3d Cir. 2014). 12 United States v. Olano , 507 U.S. 725, 731

– 32 (1993). 13 United States v. Green , 556 F.3d 151, 154 n.2 (3d Cir. 2009) ( awarding a new trial on other grounds, but noting that , “b ecause this issue was not formally raised and litigated below, we are thus unable to make the req uisite materiality determination based on the record before us. ”).5

For the foregoing reasons , we will affirm the District Court’s judg ment in its entirety.