Full opinion text
DECISION AND ORDER ON DEFENDANT’S PRETRIAL MOTIONS McMAHON, District Judge. INTRODUCTION Defendant Joseph Watts (“Watts”), an alleged associate in the “Gambino Organized Crime Family” (or “Gambino Family”), is charged in the Superseding Indictment (SI 09 Cr. 62 (the “Indictment”)) with: (1) conspiring to participate in the conduct of the affairs of a criminal enterprise through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations (“RICO”) statute, 18 U.S.C. § 1962(d) (Count One); and (2) killing and aiding and abetting others in killing Frederick Weiss (“Weiss”), a potential witness in a then-pending trial in this District, in violation of 18 U.S.C. § 1512(a) (Count Three). Watts has filed two sets of pretrial motions asking the Court to (1) dismiss Count One of the Indictment as unconstitutionally vague or, “[a]t a minimum,” order the Government to provide a bill of particulars (Mem. in Supp. of Watts’ Second Set of Pretrial Mots., Oct. 23, 2009 (“Watts’ Second Mem.”), at 6); (2) dismiss Count Three — the Weiss murder count (which was Count Two in the original indictment) — as time-barred; (3) dismiss Count Three as barred by double jeopardy and/or res judicata; (4) dismiss Count Three as barred by a plea agreement that Watts entered into in 1996 with the U.S. Attorney’s Office (“USAO”) for the Eastern District of New York (“EDNY”); (5) dismiss Count Three because the Government is estopped from claiming that Watts murdered Weiss or aided and abetted the murder because that claim is factually inconsistent with the position taken by the Government in prior prosecutions of other organized crime associates; and (6) suppress the fruits of the search of the Manhattan office of a company called American Blast, Ltd. (“American Blast”). For the reasons set forth below, Watts’ motions are denied. BACKGROUND I. The Indictment The Government alleges that Watts was part of the Gambino Organized Crime Family from about 1980 through March 2009. (Superseding Indictment ¶ 13.) The Gambino Family allegedly constituted a RICO “enterprise,” 18 U.S.C. § 1961(4), whose members and associates engaged in numerous violent and other crimes, including murder, obstruction of justice, extortion, “loansharking,” money laundering and illegal gambling. (Superseding Indictment ¶¶ 1-2.) The Indictment alleges that the Gambino Family, which was based in New York City, was part of a nationwide criminal organization known as the “Mafia” or “La Cosa Nostra” (“LCN”). (Id. ¶¶ 2-3.) Five other organized crime families allegedly operated in the New York City area, including the “DeCavalcante Organized Crime Family” (or “DeCavalcante Family”). (ZcL ¶ 3.) The Indictment alleges that the Gambino Family operated through groups of individuals known as “crews” and “regimes,” each of which had as its leader a man known as a “Caporegime,” “Capo” or “Captain.” (Id. ¶ 4.) The crews allegedly consisted of “ ‘made’ members,” sometimes called “Soldiers,” who were aided in their criminal endeavors by other trusted individuals, known as “associates” (an associate, such as Watts, could not become a “made” member because his father was not Italian). (See id.) Above the Capos was the “Administration” — the highest-ranking members of the Gambino Family, including its head, the “Boss.” (Id. ¶ 6.) A. Count One: RICO Conspiracy Count One of the Indictment charges Watts with conspiring — -from 1980 into 2009 — “to conduct and participate, directly and indirectly, in the conduct of the affairs of [the Gambino Family] enterprise through a pattern of racketeering,” in violation of 18 U.S.C. § 1962(d). (Superseding. Indictment ¶ 13.) The Indictment specifies Watts’ alleged position in the Gambino Family: Watts was an associate, but a “close associate” of Boss John A. Gotti, and “was afforded the status of a Gambino Family Capo.” (Id. ¶ 10.) Count One alleges that in order to protect and expand the Gambino Family’s business, members of the Family and their co-conspirators murdered and attempted to murder persons who engaged in activities that threatened the Family’s power and criminal operations. (Id. ¶ 12(a).) The Government alleges that “Frederick Weiss was killed by ... WATTS and [his] co-conspirators because Weiss was believed to be cooperating with law enforcement.” (Id. 12(c).) According to the Government, Watts “plotted the murder.” (Id.) Count One further alleges that Watts and his co-conspirators generated income for the Gambino Family through loansharking, gambling, extortion and fraud. (Id. ¶ 12(d).) In particular, the Government alleges that Watts and others extorted “protection]” payments from individuals and businesses seeking to “avoid harm from” the Gambino Family; that Watts ran a loansharking operation centered in Staten Island; and that Watts defrauded business partners by misrepresenting himself as “Joseph Russo.” (Id.) Members and associates of the Gambino Family allegedly “laundered” the proceeds of their criminal activities through various means. (Id. ¶ 12(e).) Watts, for example, allegedly used such criminal proceeds to purchase and renovate properties and other assets in Florida through straw buyers. (Id.) Watts and others also allegedly created an energy drink company called American Blast in 2007, which was used to launder Gambino Family proceeds. (Id.) Count One further alleges that members and associates of the Gambino Family misrepresented the nature of their income and financial transactions to obstruct judicial proceedings brought against them. (Id. ¶ 12(h).) Watts allegedly paid a witness $625,000 to create a false defense to criminal charges pending against Watts. (Id.) In the section of Count One titled “The Pattern of Racketeering,” paragraph 15 of the Indictment alleges that the pattern of racketeering through which Watts and his co-conspirators agreed to participate in the conduct of the affairs of the enterprise consisted of: multiple acts and threats involving: (a) Murder, in violation of New York Penal Law, Sections 125.25, 105.15, and 110.00; (b) Gambling, in violation of New York State Penal Law, Sections 225.00 and 225.10; and (c) Commercial bribery, in violation of New York Penal Law § [sic]180.03[;] and multiple acts indictable under: (d) Title 18, United States Code, Section 1951, involving extortion; (e) [18 U.S.C. § 892], involving the making of extortionate extensions of credit; (f) [18 U.S.C. § 1512], involving obstruction of justice, and witness tampering; (g) [18 U.S.C. § 1955], involving the operation of an illegal gambling business; (h) [18 U.S.C. § 1952], involving the use of interstate facilities to commit commercial bribery; (i) [18 U.S.C. §§ 1956 and 1957], involving money laundering; and (j) [18 U.S.C. §§ 1341 and 1343], involving mail fraud and wire fraud. (Superseding Indictment ¶ 15.) B. Count Three: Murder of a Witness Count Three of the Superseding Indictment charges Watts under 18 U.S.C. § 1512 with the 1989 murder of Frederick Weiss, a potential witness in the then-pending trial of United States v. Angelo Paccione, et al., 89 Cr. 446(CBM). (Superseding Indictment ¶ 21.) The Government alleges that: From in or about September 1, 1989 to in or about September 11, 1989, in the Southern District of New York, the Eastern District of New York, and elsewhere, ... JOSEPH WATTS, ... with malice aforethought, willfully, deliberately, maliciously and with premeditation killed and aided and abetted others in killing, Frederick Weiss with intent to (a) prevent the attendance and testimony of Frederic [sic] Weiss in an official proceeding, and (b) prevent the communication by Frederick Weiss to a law enforcement officer or Judge of the United States information relating to the commission and possible commission of a Federal offense .... (Id.) II. The Prior Prosecution of Watts in the EDNY In the mid-1990s, Joseph Watts was prosecuted in the EDNY for, inter alia, conspiring to murder Frederick Weiss. Watts argues that the EDNY prosecution, which ended in a mid-trial plea agreement, bars the Weiss murder count in the current Indictment. In 1993, the EDNY USAO charged Watts with nine counts of racketeering-related offenses. See United States v. Joseph Watts, 93 Cr. 294(S-2)(CPS) (the “EDNY Indictment”). One of the counts in the EDNY Indictment charged Watts under 18 U.S.C. § 1959 with conspiring to murder Weiss in aid of racketeering. The EDNY Indictment read, in relevant part, that: In or about and between August 1989 and September 11, 1989, within the Eastern District of New York and elsewhere, the defendant JOSEPH WATTS, together with James Failla, Dominick Borghese, John Gotti, Salvatore Gravano and others, for the purpose of gaining entrance to and maintaining and increasing position in the Gambino Family, an enterprise engaged in racketeering activity, conspired to murder Fred E. Weiss .... In addition, the EDNY Indictment charged Watts with a substantive RICO violation under 18 U.S.C. § 1962(c). The third of the five predicate acts alleged in the RICO count was conspiracy to murder Weiss in violation of state law. In 1996, after his trial had begun, Watts pleaded guilty to one count (conspiracy to murder Thomas Spinelli) of the nine-count EDNY Indictment. See Plea Agreement, United States v. Watts, 93 Cr. 294(CPS), Feb. 15, 1996 (the “Plea Agreement” or “Agreement”), attached as Ex. A to the Affn of Gerald L. Shargel, dated Apr. 29, 2009 (“Shargel Affn”). Pursuant to the terms of the Agreement, Watts received a six-year prison sentence and the remaining eight counts were dismissed. See id. ¶¶ 2, 4(a); (see also Shargel Affn Ex. B (Tr. of Watts Sentencing, June 11,1996)). The Plea Agreement provided, inter alia, that the EDNY USAO would bring no further charges against Watts for the conduct described in the EDNY Indictment. Plea Agreement ¶ 4(b). Significantly, the Agreement’s reach was expressly limited to the EDNY USAO: the Agreement stated that, “This Agreement is limited to the United States Attorney’s Office for the Eastern District of New York and cannot bind other federal, state, or local prosecuting authorities.” Id. ¶ 7. Additional terms of the Agreement will be discussed herein, as they become relevant. DISCUSSION I. Watts’ Motion to Dismiss Count One as Unconstitutionally Vague Watts moves to dismiss Count One on the ground that it is unconstitutionally vague or, in the alternative, for an order requiring the Government to provide a bill of particulars. For the reasons explained below, Count One meets the constitutional standard, and the Court declines to order a bill of particulars. A. Legal Standard for the Sufficiency of the Indictment “ ‘An indictment is sufficient when it charges a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events.’ ” United States v. Yannotti, 541 F.3d 112, 127 (2d Cir.2008) (quoting United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir.1992)). As the Second Circuit has consistently held, “ ‘an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.’ ” Id. (quoting United States v. Alfonso, 143 F.3d 772, 776 (2d Cir.1998)). “Federal Rule of Criminal Procedure 7(c) requires only that an indictment be ‘a plain, concise, and definite written statement of the essential facts constituting the offense charged.’ ” Id. (quoting Fed.R.Crim.P. 7(c)). In the RICO context, the Second Circuit has recently emphasized that “ ‘the agreement proscribed by section 1962(d) is [a] conspiracy to participate in a charged enterprise’s affairs’ through a pattern of racketeering, not [a] conspiracy to commit predicate acts.’ ” United States v. Pizzonia, 577 F.3d 455, 463 (2d Cir.2009) (quoting United States v. Persico, 832 F.2d 705, 713 (2d Cir.1987)) (emphasis added); Yannotti 541 F.3d at 121 (same). “To establish a RICO conspiracy, the government must prove that a defendant agreed to participate in the affairs of the enterprise through a pattern of racketeering activity.” Yannotti, 541 F.3d at 121. In Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997), the Supreme Court made clear that to establish this pattern, the government need not prove that the defendant himself agreed that he would commit two or more predicate acts. See id. at 64, 118 S.Ct. 469. Instead, “to be found guilty of RICO conspiracy, a defendant need only know of, and agree to, the general criminal objective of a jointly under-taken scheme.” Yannotti, 541 F.3d at 122 (citing Salinas, 522 U.S. at 63, 118 S.Ct. 469). As the Second Circuit stated in United States v. Ciccone, 312 F.3d 535 (2d Cir.2002), a defendant “need not commit or even agree to commit the predicate acts ... to be found guilty of the racketeering conspiracy, for it suffices that he adopted the goal of furthering or facilitating the criminal endeav- or.” Id. at 542 (internal quotations and citation omitted). Thus, “to secure [defendant’s] conviction for RICO conspiracy, the government [is] not required to prove the actual commission of a single predicate act by [defendant] or any other conspirator.” Yannotti 541 F.3d at 129. Rather, “The predicate acts are relevant merely to establish the existence of the charged agreement among members of the conspiracy to conduct the affairs of the enterprise through a pattern of racketeering conduct and do not constitute separate criminal objectives.” Id. B. Count One Is Not Impermissibly Vague Count One of the Indictment passes constitutional muster. Count One may not be as specific as Watts would like, but it is considerably more specific than Watts’ moving papers would have one believe. It includes the necessary elements, and as much detail as is constitutionally required — perhaps little more, but not less. Count One tracks the applicable language of the RICO statute. It alleges that Watts and others “conspire[d] and agree[d] ... to conduct and participate, directly and indirectly, in the conduct of the affairs of [the Gambino Organized Crime Family],” an “enterprise [that] was engaged in, and the activities of which affected, interstate and foreign commerce, ... through a pattern of racketeering activity.” (Superseding Indictment ¶ 13.) Count One also states the approximate time and place of the alleged crime. It states that the alleged conspiracy occurred “[f]rom in or about 1980 through in or about March 2009, in the Southern District of New York and elsewhere.” (Id.) While 1980 to 2009 is an unusually long time period to be charged in an indictment, that does not invalidate Count One. Watts complains that Count One does not provide the times and places of the alleged predicate acts, but the charged crime is the racketeering conspiracy — which, according to the Government, spanned approximately thirty years. As the Second Circuit made clear in United States v. Pizzonia, 577 F.3d 455, 463 (2d Cir.2009), “a racketeering conspiracy is a concept distinct from (a) the pattern of racketeering ... and (b) the predicate acts that may evidence the pattern.” Although the underlying predicate acts may be^ — -and often are — relevant “to establish the existence of the charged agreement,” they “do not constitute separate criminal objectives.” United States v. Yannotti 541 F.3d 112, 129 (2d Cir.2008). In addition to satisfying the basic requirements of tracking the language of the RICO statute and stating the approximate time and place of the alleged conspiracy, the twelve pages of Count One provide certain details regarding the nature and structure of the charged enterprise, its purposes, means and methods, and Watts’ position in the Family. (See Superseding Indictment ¶¶ 1-15.) The Indictment also lists the state and federal statutory offenses that allegedly comprise the pattern of racketeering through which Watts and his co-conspirators agreed to participate in the enterprise’s affairs. (Id. ¶ 15.) Although that list of predicate offenses — set forth in the “Pattern of Racketeering” section of Count One — does not detail the conduct that allegedly violated each listed statute, Count One elsewhere describes several instances of criminal activity by Watts that allegedly occurred as part of the charged conspiracy. (See id. ¶ 12.) For example, Watts allegedly plotted the Weiss murder in 1989; ran a loansharking operation centered in Staten Island; laundered Gambino Family proceeds through an energy drink company that he created in 2007, and by purchasing properties in Florida through straw buyers; and paid a witness $625,000 to create a false defense in a pending criminal trial. (Id.) Watts contends that these descriptions should not be viewed as amplifying the list of predicate offenses because they appear in the “Means and Methods of the Enterprise” section of Count One — not the “Pattern of Racketeering” section. (See Reply Mem. in Further Supp. of Watts’ Second Set of Pretrial Mots., Jan. 13, 2010 (“Watts’ Second Reply”), at 6.) The Court finds this argument unpersuasive. First, while the elements of “enterprise” and “pattern” are distinct, they often naturally overlap. See Boyle v. United States, — U.S. -, 129 S.Ct. 2237, 2245, 173 L.Ed.2d 1265 (2009); Pizzonia, 577 F.3d at 463. Second, the Indictment consistently and repeatedly introduces these allegations of Watts’ criminal conduct with the phrase, “as part of the conspiracy” (Superseding Indictment ¶ 12), making clear that the specified acts are alleged to have occurred as part of the charged RICO conspiracy. Finally, Watts’ conduct described in the enterprise section corresponds with statutory offenses listed in the pattern section (which include, for example, murder, extortion, money laundering and obstruction of justice). In short, the descriptions of criminal conduct in the enterprise section provide some additional “factual particularity,” see United States v. Walsh, 194 F.3d 37, 45 (2d Cir.1999), and thus help ensure that Watts is afforded constitutionally sufficient notice of the RICO conspiracy charge lodged against him. In arguing for Count One’s dismissal, Watts claims that Pizzonia. Yannotti and other “post -Salinas decisions” require RICO conspiracy indictments to plead predicate acts of racketeering in greater detail than the Government has here. (See Watts’ Second Mem. at 3-4.) They do not. Indeed, both Pizzonia and Yannotti distinguish between individual predicate acts of racketeering and the broader concept of a RICO conspiracy. And while the Pizzonia indictment did contain a standalone RICO conspiracy count that specifically alleged seven acts of racketeering, see S4 05 Cr. 425(JBW) (E.D.N.Y. Dec. 7, 2006)— not, contrary to the Government’s mistaken assertion, a § 1962(d) count that merely “referred back” to predicate acts charged in a substantive § 1962(c) count (see Gov’t Mem. in Opp. to Watts’ Pre-Trial Mots., Dec. 21, 2009 (“Gov’t Second Opp.”), at 7) — that does not mean that Pizzonia should be read as requiring all RICO conspiracy counts to be pleaded in that form, or that the instant Indictment is necessarily insufficient. Furthermore, the Government is correct that § 1962(d) counts often refer to specifically described predicate acts merely because they are charged alongside substantive RICO counts — in which predicate acts must be charged, and proved. In the Yannotti indictment, for example, the RICO conspiracy count described the alleged pattern of racketeering simply by incorporating by reference the predicate acts already set forth in the preceding § 1962(c) count, see SI 04 Cr. 690(SAS) (S.D.N.Y. June 6, 2005); contrary to Watts’ mistaken contention (see Watts’ Second Reply at 3 n. 1), the § 1962(d) count did not specify any additional acts of racketeering, but rather alleged only the necessary agreement. In sum, the Court does not interpret Pizzonia or Yannotti as requiring more than what the Government has alleged in Count One here. Watts also cites the Second Circuit’s decision in United States v. Pirro, 212 F.3d 86 (2d Cir.2000), as well as the Supreme Court’s decision in Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (upon which Pirro relies), for the proposition that Count One fails because it must — but does not — “ ‘descend to particulars,’ describing discrete ‘criminal act[s] rather than [] type[s] of crime,’ so ‘the prosecution will not fill in elements of its case’ with facts never passed on by the grand jury.” (Watts’ Second Mem. at 5 (quoting Pirro, 212 F.3d at 92-93) (emphasis deleted).) But quoting favorable language from higher courts does not make it applicable to the case at bar. In Pirro, the Second Circuit affirmed the dismissal of an indictment that failed to allege an element of the offense charged — namely, “a material falsehood or an omission that amounted to a material falsehood,” 212 F.3d at 93. The indictment charged the defendant with not disclosing on his tax return an “ownership interest” in certain properties, but the Government failed to allege facts giving rise to a duty to disclose that interest. Id. Thus, more factual detail was needed just to plead the essential elements of the charged offense. There is no similar defect in the Indictment presently before the Court. In Russell, the Supreme Court overturned the defendant’s conviction stemming from his “refus[al] to answer some questions of a Senate subcommittee” because the indictment “did not even purport to inform him in any way of the identity of the topic under subcommittee inquiry.” 369 U.S. at 767-68, 82 S.Ct. 1038. Thus, the indictment “fail[ed] to fulfill its primary office — to inform the defendant of the nature of the accusation against him.” Id. at 767, 82 S.Ct. 1038. Watts makes a similar claim here — that Count One is so vague that he will “have to wait until trial to learn ‘the gist of the charge! ]’ against him.” (Watts’ Second Mem. at 6 (quoting Pirro, 212 F.3d at 93).) That is plainly not the case. The instant Indictment does fulfill its “primary office” of informing Watts of the nature of the RICO conspiracy charge against him. Watts also points to several district court cases, none of which actually involved the dismissal of a RICO conspiracy count. (See id. at 5-6 (citing United States v. Galestro, No. 06 Cr. 285, 2008 WL 2783360 (E.D.N.Y. July 15, 2008); United States v. Urso, 369 F.Supp.2d 254 (E.D.N.Y.2005); United States v. Solovey, No. 04-CR-2445, 2005 WL 1279228 (W.D.N.Y. May 31, 2005); United States v. Gotti No. S4 02 CR 743, 2004 WL 32858 (S.D.N.Y. Jan. 6, 2004); United States v. Abrams, 539 F.Supp. 378 (S.D.N.Y.1982)).) Watts relies most heavily on Judge Garaufis’ decision in Urso, but the case is of no help to him. In Urso, the court dismissed two substantive loansharking counts for lack of specificity. Each count consisted of a single, short paragraph that did nothing more than track the statutory language and state the approximate time and place of the crime. See 369 F.Supp.2d at 265. However, in that same decision, Judge Garantís refused to dismiss a predicate act that alleged a loansharking conspiracy with the very same lack of detail. Id. at 267. The court noted that “it is well established that an indictment for conspiracy to commit a criminal offense may be stated with less specificity than an indictment charging the commission of that substantive offense.” Id. (citing United States v. LaSpina, 299 F.3d 165, 177 (2d Cir.2002)). Here, Count One charges a racketeering conspiracy, not a substantive violation; further, the two loansharking counts dismissed in Urso were far more sparsely pled than the twelve-page RICO conspiracy count at issue here, and both alleged direct violations of federal law, not predicate acts of racketeering. Cf. Gotti, 2004 WL 32858, at *7 (noting, as Watts concedes, that a crime alleged as a RICO predicate act need not be pleaded with the same specificity as the same crime charged as a direct violation of federal or state law). Thus, Watts’ citation to Urso is inapposite and, if anything, undercuts his position. For the reasons discussed above, the Court concludes that Count One is not unconstitutionally vague. Accordingly, Watts’ motion to dismiss Count One is denied. C. Watts’ Request for a Bill of Particulars In the alternative, Watts seeks a bill of particulars from the Government providing the identities of alleged co-conspirators and witnesses, as well as certain dates, locations and other details of the predicate acts alleged in Count One. (Affn of Ross H. Kramer, Oct. 23, 2009 (“Kramer Affn”), Ex. A (Ltr. Request for Bill of Particulars, dated Oct. 14, 2009).) In light of the “Enterprise Letter” recently submitted by the Government (Docket No. 37), Watts’ request for a bill of particulars is denied. Federal Rule of Criminal Procedure 7(f) permits a district court to order a bill of particulars. Fed.R.Crim.P. 7(f). A bill of particulars “is appropriate to permit a defendant ‘to identify with sufficient particularity the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense.’ ” United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir.1988) (iquoting United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir.1987) (per curiam)). “A bill of particulars is not a general investigative tool, a discovery device or a means to compel the government to disclose evidence or witnesses to be offered prior to trial.” United States v. Gibson, 175 F.Supp.2d 532, 537 (S.D.N.Y.2001). “Instead, its purpose is to supplement the facts contained in the indictment when necessary to enable defendants to identify with sufficient particularity the nature of the charges against them.” United States v. Gotti, No. S4 02 CR 743, 2004 WL 32858 (S.D.N.Y. Jan. 6, 2004). The decision to grant or deny a bill of particulars “rests within the sound discretion of the district court.” BoHnovsky, 820 F.2d at 574. “Generally, if the information sought by defendant is provided in the indictment or in some acceptable alternate form, no bill of particulars is required.” Id. The Court declines to order a bill of particulars in this case. The Government’s Enterprise Letter, which specifies a considerable number of supplementary facts concerning the predicate acts underlying the RICO count, provides Watts with much of the information sought in his request for a bill of particulars. The Court is satisfied that the Government has met its obligations, and that Watts has sufficient notice of the charges against him so that he can adequately prepare for trial. II. Watts’ Motion to Dismiss Count Three as Time-Barred Watts moves to dismiss the Weiss murder count on the ground that it is time-barred. In his initial brief, Watts argued that the Weiss murder count, as set forth in the original indictment, failed to allege the elements of first-degree murder, and therefore could not benefit from the unlimited statute of limitations for capital crimes, 18 U.S.C. § 3281. Watts’ principal argument, however, is that even if the Weiss murder count does charge first-degree murder, it is untimely because the death penalty could not have constitutionally been imposed in 1989 when Weiss was killed — such that the crime is not “punishable by death” within the meaning of § 3281, and therefore not subject to that section’s unlimited statute of limitations. As explained below, the Superseding Indictment has rendered the first argument moot, and the second argument fails on the merits. A. Count Three of the Superseding Indictment Charges First-Degree Murder The Weiss murder count charges Watts with murdering a witness in violation of 18 U.S.C. § 1512. Section 1512 punishes such murders as provided in 18 U.S.C. § 1111. 18 U.S.C. § 1512(a)(3)(A). Section 1111, in turn, authorizes a maximum sentence of death for first-degree murder, and life imprisonment for second-degree murder. 18 U.S.C. § 1111. In his initial brief, dated April 29, 2009, Watts argued that the Weiss murder count in the original indictment “fails to allege the elements of first-degree murder as defined in § 1111 — specifically, that [Weiss’s] killing was willful, deliberate, malicious, with premeditation and malice aforethought.” (Mem. in Supp. of Watts’ First Set of Pretrial Mots., Apr. 29, 2009 (“Watts’ First Mem.”), at 3 (internal quotations and citation omitted).) On June 1, 2009, the Government filed the Superseding Indictment. The Weiss murder count (Count Three) now alleges that Watts, “with malice aforethought, willfully, deliberately, maliciously and with premeditation killed and aided and abetted others in killing, Frederick Weiss.” (Superseding Indictment ¶ 21.) The Government, of course, maintains that “the original indictment was plainly sufficient to allege murder in the first degree,” but states that it added the above-quoted language “in an abundance of caution, and to obviate any need to address the issue.” (Gov’t Mem. in Opp. to Watts’ First Set of Pretrial Mots., June 8, 2009 (“Gov’t First Opp.”), at 7 n. 4.) The Court expresses no opinion on whether the original Weiss murder count alleged first-degree murder; Count Three of the Superseding Indictment plainly does, and Watts’ argument is therefore moot. B. Count Three Is “Punishable by Death” Within the Meaning of § 3281 Watts’ principal argument in support of his motion to dismiss the Weiss murder count as time-barred stems from the fact that, when Weiss was killed in 1989, the death penalty could not have constitutionally been applied to a § 1512 violation as a result of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Because the death penalty could not have been imposed when the crime was committed, the argument goes, the Weiss murder is not a crime “punishable by death,” 18 U.S.C. § 3281, and therefore is not subject to § 3281’s unlimited limitations period. The reasoning underlying Watts’ argument is that the phrase “punishable by death” refers to whether, as a practical matter, the death penalty could be imposed in a given case, and not to whether Congress — as a result of its judgment that a particular crime is especially serious in nature — has authorized the death penalty in the charging statute. At the time Watts filed his motion, three circuits — the Fourth, Eighth and Ninth— had rejected this argument (or a close corollary of it). See United States v. Ealy, 363 F.3d 292 (4th Cir.2004), cert. denied, 543 U.S. 862, 125 S.Ct. 227, 160 L.Ed.2d 103 (2004); United States v. Edwards, 159 F.3d 1117 (8th Cir.1998), cert. denied, 528 U.S. 825, 120 S.Ct. 309, 145 L.Ed.2d 64 (1999); United States v. Manning, 56 F.3d 1188 (9th Cir.1995). Watts argued, unpersuasively, that these sister circuit decisions “should not be followed,” and that they were “at odds” with the law of this Circuit. (Watts’ First Mem. at 9.) However, on January 5, 2010, after Watts’ motion was fully submitted, the Second Circuit decided United States v. Payne, 591 F.3d 46 (2d Cir.2010), which adopts the approach of the Fourth, Eighth and Ninth Circuits, and forecloses the argument that Watts makes here. The federal criminal code contains two general statute-of-limitations provisions. The usual limitations period, pursuant to 18 U.S.C. § 3282, is five years: Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed. 18 U.S.C. § 3282(a) (emphasis added). However, “An indictment for any offense punishable by death may be found at any time without limitation.” Id. § 3281 (emphasis added). In Payne, the defendant appealed his convictions for, inter alia, murder in aid of racketeering under 18 U.S.C. § 1959(a)(1), which provides for a maximum penalty of death. 591 F.3d at 51, 56-57. The defendant “contend[ed] that the § 1959(a)(1) murder-in-aid-of-racketeering counts against him were ... not ‘punishable by death’ within the meaning of § 3281, because in order to permit imposition of the death penalty in accordance with the Federal Death Penalty Act, 18 U.S.C. § 3591 et seq. [ (1994) (“FDPA”) ], an indictment is required to allege, and the jury is required to find, an aggravating factor set out in § 3592(c), ... and here there was no allegation or finding of any such aggravating factor.” 591 F.3d at 57. The Second Circuit flatly rejected that argument. The court held, in unambiguous terms, that “in determining whether an offense is ‘punishable by death’ within the meaning of § 3281 ... we look to the character of the offense and the penalties that are set out by statute.” Id. at 58-59 (emphasis added). The panel reasoned that “a provision that subjects a person accused of certain crimes to prosecution without time limitation reflects the serious nature of those crimes,” id. at 58, and that “in § 3281, ‘Congress has made the judgment that some crimes are so serious that an offender should always be punished if caught,’ ” id. (quoting Manning, 56 F.3d at 1196). Quoting the Fourth Circuit, the Payne court stated that “whether a crime is ‘punishable by death’ under § 3281 or ‘[not] capital’ under § 3282 depends on whether the death penalty may be imposed for the crime under the enabling statute, not on whether the death penalty is in fact available for defendants in a particular case.” Payne, 591 F.3d at 59 (quoting Ealy, 363 F.3d at 296-97) (other internal quotations omitted) (emphasis added). Accordingly, the court affirmed the defendant’s conviction, holding that, “An offense ‘punishable by death,’ within the meaning of § 3281, is one for which the statute authorizes death as a punishment, regardless of whether the death penalty is sought by the prosecution or ultimately found appropriate by the factfinder or the court.” Payne, 591 F.3d at 59. In reaching its decision, the Second Circuit endorsed its sister circuits’ decisions in Ealy, Edwards and Manning, see Payne, 591 F.3d at 59 — i.e., precisely the cases that Watts argued “should not be followed” (Watts’ First Mem. at 9). All three of those decisions soundly reject Watts’ reasoning, but the Fourth Circuit’s decision in Ealy bears special mention because of its similarity to the case at bar. In Ealy, the defendant advanced the same argument that Watts makes here— that “the death penalty could not have been constitutionally imposed for the § 1512 offenses [with which he was charged] because of the Supreme Court’s opinion in Furman,” and that, “As a result, ... none of these offenses were ‘punishable by death’ under § 3281,” Ealy, 363 F.3d at 296. The Fourth Circuit rejected that argument, holding that, “Even if a court cannot impose the death penalty for an offense, that does not render the offense ‘not capital’ with respect to other statutes predicated in their operative effect upon the concept of capital crime.” Id. at 297 (internal quotations and citation omitted). Thus, “even if imposition of the death penalty would be unconstitutional, [the § 1512] violations alleged in this case are still ‘capital crimes’ for limitations purposes under §§ 3281-3282.” See id.; see also United States v. Emery, 186 F.3d 921, 924 (8th Cir.1999) (rejecting similar Fur-man-based argument in connection with 1990 murder indicted under § 1512 more than five years after its commission). In Payne, the defendant, like Watts here, “relie[d] principally on a half-eentury-old interpretation of ‘punishable by death’ ” found in United States v. Parrino, 180 F.2d 613 (2d Cir.1950), see Payne, 591 F.3d at 57. In that case, the Second Circuit considered a statute that made kidnapping punishable by death, if the jury so recommended, in cases where the victim was not released unharmed. Parrino, 180 F.2d at 615. The Parrino court held that § 3281’s predecessor (which also contained the phrase “punishable by death”), “did not make the character of the crime the test” but that, to the contrary, an offense “does not become” punishable by death unless and until all of the factors warranting imposition of the death penalty have been found by the factfinder. See id. (emphasis added). In Payne, the Second Circuit expressly rejected Parrino’s interpretation of “punishable by death,” noting that it “has been overtaken by more recent cases” and that it “has not been followed ... either by the Supreme Court in interpreting the same kidnaping provision, [see Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959),] or by this Court in interpreting other statutes. Payne, 591 F.3d at 57. After Payne was decided, Watts made a feeble attempt to distinguish it. He contends that Payne is not controlling because it did not consider the precise argument he makes here — that a § 1512 murder is not “punishable by death” if it was committed when capital punishment was constitutionally unavailable — but rather involved “a somewhat similar claim” that a racketeering murder is not “punishable by death” if the indictment does not allege (and the jury does not find) an aggravating factor required by the FDPA for the imposition of the death penalty. (See Watts’ Second Reply at 15-16.) Watts’ attempt to distinguish Payne is to no avail. As the discussion above makes clear, Payne soundly rejected the reasoning that underlies Watts’ argument. Moreover, Payne endorsed a decision (Ealy) that did reject the very same constitutional, Furman-based argument that Watts advances here. Simply put, the Second Circuit has confirmed that whether an offense is “punishable by death” — i.e., “capital” — within the meaning of §§ 3181-82 depends on the penalty prescribed by Congress in the charging statute. Here, that statute is § 1512, and it provides for the death penalty. Thus, in light of Payne — not to mention the highly persuasive authority from other circuit courts — this Court rejects Watts’ argument. The Weiss murder count is “punishable by death” within the meaning of § 3281, and therefore could have been indicted after any number of years. Accordingly, Watts’ motion to dismiss Count Three as time-barred is denied. III. Watts’ Motion to Dismiss Count Three as Barred by Double Jeopardy and Res Judicata Watts contends that the Weiss murder count is barred by both double jeopardy and res judicata as a result of his mid-1990s prosecution in the EDNY. As described above, the EDNY indictment charged Watts under 18 U.S.C. § 1959 with conspiring to murder Weiss in aid of racketeering. In addition, one of the predicate acts alleged in the substantive RICO count was conspiracy to murder Weiss in violation of New York law. Watts’ double jeopardy/res judicata arguments fail. The double jeopardy bar does not apply here because § 1512 and § 1959 are different offenses, and extending the doctrine of res judicata to the instant prosecution would be both unprecedented and unwarranted. A. The Double Jeopardy Clause The Double Jeopardy Clause provides that never “shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const., amend. Y. “Under this Clause, once a defendant is placed in jeopardy for an offense, and jeopardy terminates with respect to that offense, the defendant may neither be tried nor punished a second time for the same offense.” Sattazahn v. Pennsylvania, 537 U.S. 101, 106, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003). It is well settled that a defendant has been placed in jeopardy — that is, jeopardy has “attached” to the indictment — when the jury is empaneled and sworn. See United States v. Podde, 105 F.3d 813, 816 (2d Cir.1997). “A double jeopardy inquiry must be conducted with the purposes served by the Clause in mind.” Id. In an oft-quoted passage, the Supreme Court articulated those purposes: The constitutional prohibition against “double jeopardy” was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.... The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). “A double jeopardy claim cannot succeed unless the charged offenses are the same in fact and in law.” United States v. Estrada, 320 F.3d 173, 180 (2d Cir.2003). The question of whether two offenses are the “same” offense for jeopardy purposes often arises where, as here, a defendant has been charged with violating different statutes based on the same general conduct. To answer the question of whether the two offenses are the same “in law,” courts apply the familiar “same elements” test announced by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); United States v. Olmeda, 461 F.3d 271, 282 (2d Cir.2006). The Block-burger test “inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offense’ and double jeopardy bars additional punishment and successive prosecution.” Dixon, 509 U.S. at 696, 113 S.Ct. 2849. If so, the offenses are different and double jeopardy does not apply. B. The Weiss Murder Count Is Not Barred by Double Jeopardy It is undisputed that jeopardy attached to the § 1959 murder charge in the EDNY Indictment. (See Gov’t First Opp. at 20 (“[Jjeopardy had attached to all dismissed counts since trial on these counts had just commenced.”).) The Government concedes that it is now “accusing] Watts of the same conduct in the § 1512 murder as it did in the § 1959 murder.” (Id. at 23 (emphasis added).) However, the Government maintains that the current prosecution is not barred because § 1512 murder and § 1959 murder are different offenses for jeopardy purposes. The Government is correct. To convict a defendant of murder in aid of racketeering under § 1959, the government must prove the following five elements: “(1) that the organization was a RICO enterprise, (2) that the enterprise was engaged in racketeering activity as defined in RICO, (3) that the defendant in question had a position in the enterprise, (4) that the defendant committed the alleged [murder], and (5) that his general purpose in so doing was to maintain or increase his position in the enterprise.” United States v. Rahman, 189 F.3d 88, 126 (2d Cir.1999). By contrast, to convict a defendant of obstruction-of-justice murder under § 1512(a), the government must prove that the defendant (1) killed the victim (2) with the intent to (a) prevent the victim’s attendance or testimony in an official proceeding, or (b) prevent the victim from communicating to a law enforcement officer or judge of the United States information relating to the commission or possible commission of a federal offense. See 18 U.S.C. § 1512(a)(1). As is immediately apparent, each section contains multiple elements not present in the other. Among other differences, § 1959 (but not § 1512) requires the government to prove that the alleged murder was in aid of a racketeering enterprise, whereas § 1512 (but not § 1959) requires the government to prove that the defendant intended to prevent the victim from testifying or communicating information to law enforcement. Thus, under the Block-burger test, § 1512 murder and § 1959 murder are different offenses, and Watts’ double jeopardy argument fails. Watts’ suggestion that double jeopardy bars the current § 1512 count as a result of the predicate act alleging the Weiss murder that was charged in the EDNY Indictment’s RICO count is also meritless. “[PJrosecutions for RICO and for its substantive predicates are distinct for double jeopardy purposes.” United States v. Gambino, 742 F.Supp. 855, 859 (S.D.N.Y.1990); see United States v. Esposito, 912 F.2d 60, 64-65 (3d Cir.1990) (holding that where defendant had been acquitted on a RICO charge, double jeopardy did not bar a subsequent prosecution for the underlying predicate acts); see also United States v. Gonzalez, 921 F.2d 1530, 1536 (11th Cir.1991) (concluding that “Congress intended RICO and its predicate crimes to be separate offenses and allow successive prosecutions”). In short, § 1512 obstruction-of-justice murder is not the “same offense” as a predicate act of racketeering alleging conspiracy to murder in violation of state law. As the Government correctly states, the § 1512 murder count is “a charge that [Watts] has never before faced.” (Gov’t First Opp. at 21.) In arguing to the contrary, Watts conspicuously ignores Blockburger, failing even to cite it in his briefs. Instead, Watts offers three arguments, each of which has some initial appeal, but all of which, upon reflection, fail. Watts’ principal argument, which underlies and to some extent encompasses the other two, is that double jeopardy bars Count Three because it charges Watts for a second time with the same conduct — the 1989 murder of Frederick Weiss. (See Watts’ First Mem. at 18 (“Thirteen years later, the government seeks to prosecute Watts for the same crime by a different name.... ”).) However, as explained above, whether two charged offenses are the same “in fact” — i.e., whether the conduct underlying the offenses is the same-— is only one part of the double jeopardy inquiry. See United States v. Olmeda, 461 F.3d 271, 282 (2d Cir.2006). As the Second Circuit has made clear, “It is not determinative whether the same conduct underlies the counts; rather, it is critical whether the ‘offense’ — in the legal sense, as defined by Congress — complained of in one count is the same as that charged in another.” United States v. Chacko, 169 F.3d 140, 146 (2d Cir.1999). Indeed, in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), the Supreme Court rejected the notion that a “same-conduct” rule should govern whether double jeopardy bars a prosecution. See id. at 703-04, 113 S.Ct. 2849. Watts attempts to skirt the settled rule that in order for double jeopardy to apply, the two offenses in question must be the same not merely in fact but “in law” — that is, under the Blockburger “same elements” test. He points, for example, to the Second Circuit’s decision in Olmeda, 461 F.3d 271, which held that double jeopardy barred an indictment in this District charging unlawful possession of ammunition because a prior North Carolina indictment for ammunition possession encompassed the same conduct. But in Olmeda, “there [was] no question that the offenses at issue in the Southern District and North Carolina indictments are the same ‘in lawf as both allege possession violations of the same criminal statute.” Id. at 282 (emphasis added) (citing Blockburger, 284 U.S. at 304, 52 S.Ct. 180). The case is therefore inapplicable here, where there is “no question” that the conduct underlying the successive murder counts is the same, but where Watts has been charged under different statutes, § 1512 and § 1959— which, as established above, proscribe legally distinct offenses for jeopardy purposes. Watts’ second argument in support of his double jeopardy claim proceeds as follows: the Government concededly will not allege that Watts actually killed Weiss, but rather that he aided and abetted the murder; an aiding and abetting charge is implicit in any substantive count in an indictment, including conspiracy; therefore, “the government has already prosecuted Watts on that theory, either actually or constructively.” (See Watts’ First Mem. at 19-20.) This is merely a different (and somewhat more confusing) way of arguing that Watts has already been prosecuted for his alleged conduct in connection with the Weiss murder. The argument therefore fails for the same reasons stated above — that is, Weiss may be correct that an aiding and abetting charge is implicit in every indictment, see United States v. Mucciante, 21 F.3d 1228, 1234 (2d Cir.1994); United States v. Sabatino, 943 F.2d 94, 99-100 (1st Cir.1991), but that does not obscure the fact that he has been charged with different substantive offenses. Given that § 1512 and § 1959 are distinct for jeopardy purposes, aiding and abetting § 1512 murder and aiding and abetting § 1959 murder necessarily are as well. Third, Watts argues that double jeopardy bars Count Three because, “as a practical matter, [racketeering] murder is a species of lesser-included offense of § 1512 murder in the circumstances at hand.” (Watts’ First Mem. at 20 (internal quotations and citations omitted).) Even if the Court were, for a moment, to pursue this line of reasoning, Watts has it backwards: murder in aid of racketeering, in the Mafia context, is more aptly described as the “greater” offense, of which obstruction-of-justice murder is one variation. But regardless, if § 1959 murder qualified as a lesser-included offense of § 1512 murder— or vice versa — then double jeopardy would bar Count Three. See United States v. Gaskin, 364 F.3d 438, 453 (2d Cir.2004) (“Double jeopardy proscribes multiple prosecutions not only for the same offense but also when one offense is a lesser included offense of the other.” (internal quotations and citation omitted)). That is not the case here. As established above, § 1512 murder and § 1959 murder contain different elements and are, under Blockburger, different offenses. Thus, Watts’ “lesser-included offense” argument fails. Yet the argument is not entirely unpersuasive. There is considerable truth in Watts’ contention that “anyone accused as an organized crime associate of killing a potential witness to prevent his testimony and cooperation also acts to maintain [his] position in a racketeering enterprise” — i.e., any mobster who commits obstruction-of-justice murder also commits murder in aid of racketeering. (See Watts’ First Mem. at 20 (internal quotations and citations omitted).) The Court agrees that, in the specific context of organized crime, § 1512 murder and § 1959 murder often overlap. On the other hand, it is not difficult to imagine a scenario in which “an organized crime associate” kills a witness or potential witness for personal reasons unrelated to the enterprise. Moreover, outside the organized crime context, obstruction-of-justice murder is entirely separate from murder in aid of racketeering. Thus, Watts’ argument, stripped to its core, is that because, in this particular case, the alleged Weiss murder constitutes both obstruction-of-justice murder and murder in aid of racketeering, double jeopardy applies. That is merely another variation on the argument that the § 1512 charge is barred because it is based on the same conduct as the § 1959 charge. As discussed above, that argument fails. The Court is also sensitive to Watts’ concern that, “With the expansion of federal jurisdiction, the U.S. Code has become a sprawling compendium of technically distinct [ jthough factually overlapping statutory offenses,” which enables prosecutors to repackage and re-allege stale and already-prosecuted conduct. {See id. at 21 (internal quotations and citation omitted).) But while the Court shares this concern— particularly in the context of the RICO organized crime prosecutions cycled through this courthouse and the one across the East River, involving the same players and often, it seems, the same crimes — the Weiss murder count in the instant Indictment is not a compelling example of the problem. Racketeering murder and obstruction-of-justice murder are distinctly different offenses, intended to punish and deter different types of criminal conduct and to further different societal interests. One statute, § 1959, seeks to vindicate the “Federal Government’s strong interest ... in suppressing the activities of organized criminal enterprises,” S.Rep. No. 98-225, at 305 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3484, while the other, § 1512, seeks to ensure a functioning criminal justice system by protecting witnesses and encouraging their cooperation with law enforcement, see 18 U.S.C. § 1512 note. This helps explain why the successive prosecutions of Watts under § 1959 and § 1512 are not constitutionally offensive. For the reasons discussed above, the Court concludes that double jeopardy does not prohibit the Government from prosecuting Watts for the Weiss murder under 18 U.S.C. § 1512. Accordingly, Watts’ motion to dismiss Count Three as barred by double jeopardy is denied. C. The Weiss Murder Count Is Not Precluded by Res Judicata Watts further contends that “beyond the jeopardy bar,” the Weiss murder count “is independently barred by the clause’s res judicata component.” (Watts’ First Mem. at 22.) He argues that “[t]he § 1512 claim” is precluded because it “could have been raised” — but was not — in the EDNY prosecution. {See id. (internal quotations and citation omitted).) This argument calls for an extension of res judicata in the criminal context that is unsupported by case law and that would run contrary to accepted notions of prosecutorial discretion. 1. The Application of “Res Judicata” in the Criminal Context The basic tenets of preclusion law in the civil context are well established. “The doctrine of res judicata, or claim preclusion, holds that ‘a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.’ ” Monahan v. New York City Dep’t of Corr., 214 F.3d 275, 284-85 (2d Cir.2000) (quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)). The related doctrine of collateral estoppel, or issue preclusion, “precludes a party from relitigating in a subsequent proceeding an issue of law or fact ... if ... (1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final judgment on the merits.” Boguslavsky v. Kaplan, 159 F.3d 715, 719-20 (2d Cir.1998) (internal quotations and citation omitted). For nearly a century now, certain aspects of civil preclusion doctrine have been applied in the criminal context. As early as 1915, the Supreme Court held that the “fund[a]mental principle of jurisprudence ... that a question of fact or of law distinctly put in issue and directly determined by a court of competent jurisdiction cannot afterwards be disputed between the same parties ... is as applicable to the decisions of criminal courts as to those of civil jurisdiction.” Frank v. Mangum, 237 U.S. 309, 333-34, 35 S.Ct. 582, 59 L.Ed. 969 (1915). The next year, the Supreme Court confirmed that “the doctrine of res judicata does ... exist for criminal cases.” See United States v. Oppenheimer, 242 U.S. 85, 87, 37 S.Ct. 68, 61 L.Ed. 161 (1916). Justice Holmes concluded that a prior adjudication, “whether it takes the form of an acquittal or conviction, is final as to ... the matters determined by it,” and may be pleaded as a bar in a subsequent prosecution. See id. at 88, 37 S.Ct. 68. In 1948, in an oft-cited decision, and one relied upon by Watts, the Supreme Court again held that “res judicata ... applies to criminal as well as civil proceedings and operates to conclude those matters in issue which the verdict determined though the offenses be different.” Sealfon v. United States, 332 U.S. 575, 578, 68 S.Ct. 237, 92 L.Ed. 180 (1948) (internal citation omitted) (emphasis added). In Sealfon, the Court held that whether “res judicata” precludes a second prosecution depends upon “whether the jury’s verdict in the [first] trial was a determination favorable to [the defendant] of the facts essential to conviction of the [subsequently charged] offense” — which, in turn, “depends upon the facts adduced at each trial.” Id. at 578-79, 68 S.Ct. 237. The Sealfon Court concluded that the first jury’s not guilty verdict had necessarily determined that a certain letter written by the defendant did not establish the existence of an agreement to defraud. See id. at 579-80, 68 S.Ct. 237. In the subsequent prosecution, however, the government made a “second attempt” to prove the alleged agreement through the letter. See id. In other words, the government sought to prove facts that had already been decided against it in the prior trial. That, the Court held, “the prosecution may not do.” Id. at 580, 68 S.Ct. 237. Although Oppenheimer and Sealfon expressly state that “res judicata” applies in the criminal context, both cases are now widely understood as referring only to collateral estoppel, not claim preclusion. As the Second Circuit has stated, “the Supreme Court ... recognized in federal criminal prosecutions a claim of what was called res judicata, but which today would be described as collateral estoppel.” United States ex rel. DiGiangiemo v. Regan, 528 F.2d 1262, 1264 (2d Cir.1975) (citing Oppenheimer, 242 U.S. 85, 37 S.Ct. 68); accord United States v. Flemmi, 283 F.Supp.2d 400, 404-05 (D.Mass.2003) (‘What Justice Holmes had in mind [in Oppenheimer ] was the estoppel effect of an adjudication on the merits, and despite his rhetorical reference to ‘res judicata,’ did not suggest that the civil doctrine of claim preclusion was in any sense at issue.”) In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court clarified that it is the doctrine of collateral estoppel that “has been an established rule of federal criminal law at least since this Court’s decision more than 50 years ago in United States v. Oppenheimer.” See Ashe, 397 U.S. at 443, 90 S.Ct. 1189. Thus, the rule that emerges from Oppenheimer, Sealfon and their progeny is that the doctrine of collateral estoppel applies in the criminal context to bar a second prosecution where the jury in the first trial, either expressly or by necessary implication, found for the defendant on an issue essential to conviction in the subsequent prosecution. See Sealfon, 332 U.S. at 578-79, 68 S.Ct. 237; United States v. Kramer, 289 F.2d 909, 913 (2d Cir.1961). Fundamentally, “issue preclusion is necessary to give the acquitted defendant the full benefit of the protections in the Double Jeopardy Clause.” United States v. Bailin, 977 F.2d 270, 277-78 (7th Cir.1992) (explaining that collateral estoppel protects against “the Government havfing] the opportunity to hone its presentation on those issues which have already been decided against it”). As the Supreme Court noted in United States v. Dixon, when it discarded a “same-conduct” test that had afforded more expansive double jeopardy protection than the Blockburger “same elements” test, collateral estoppel discourages prosecutors from “bringing] separate prosecutions in order to perfect their case,” as “an acquittal in the first prosecution might well bar litigation of certain facts essential to the second one.” See Dixon, 509 U.S. at 710 n. 15, 113 S.Ct. 2849: see also 26 Moore’s Federal Practice-Criminal Procedure § 629.22 (“Offsetting the disadvantage to the accused from the [Blockburger ] same elements test is the application of the doctrine of collateral estoppel.... ”). Here, for example, had the jury in the first Watts trial found him not guilty of conspiring to murder Weiss, it is possible, depending on the facts adduced at the tria