NOT PRECEDENTIAL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-00496-011) 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. McKEE, Circuit Judge.

Gary Battaglini appeals the judgment of sentence following his conviction for

racketeering 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 right to

confront witnesses was violated by admission of recorded conversations. The

Confrontation Clause of the Sixth Amendment bars out-of-court statements that are

testimonial, unless the witness is unavailable and the defendant had a prior opportunity to

cross-examine the witness.2 “The Clause . . . does not bar the use of testimonial

statements 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 their

truth, and were therefore outside the scope of the Confrontation Clause.5 We agree.

1 The District Court had subject-matter jurisdiction over the case pursuant to

. We have appellate jurisdiction to review the District Court’s final sentence under

and

. 2 Crawford v. Washington,

(2004). 3

at 77 n.9 (citing Tennessee v. Street,

(1995)). 4 Lambert v. Warden Greene SCI,

(3d Cir. 2017). 5 United States v. Hendricks,

, 182–84 (3d Cir. 2005).

2 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 not introducing them for their truth; rather, the statements were necessary

to establish context. We explained:

Under these circumstances, we conclude that the Government should be permitted to introduce the balance of the conversations, i.e., the statements of [the] CI . . . which, as the Government argues, put the statements of the other parties to the conversations into perspective and make them intelligible to the jury and recognizable 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 the 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

II.

6

. 7

(internal citations and quotations omitted). 8 United States v. Wright,

(8th Cir. 2014) (“[I]n order to fall within the purview of the Confrontation Clause, the evidence not only must be testimonial but also must be offered for the truth of the matter asserted.”).

3 Battaglini also argues that the government committed a Brady9 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. We 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 We have declined to review Brady claims 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 record. For example, the parties disagree about whether the

alleged Brady material was disclosed in a timely manner and whether counsel had the

opportunity to cross-examine. We cannot assess these claims absent factual findings from

the District Court.

III.

9 Brady v. Maryland,

(1963). 10 United States v. Perdomo,

(3d Cir. 1991). 11 United States v. Claxton,

(3d Cir. 2014). 12 United States v. Olano,

, 731–32 (1993). 13 United States v. Green,

, 154 n.2 (3d Cir. 2009) (awarding a new trial on other grounds, but noting that, “because this issue was not formally raised and litigated below, we are thus unable to make the requisite materiality determination based on the record before us.”).

4 For the foregoing reasons, we will affirm the District Court’s judgment in its

entirety.

5