dissenting in part:
I concur in so much of the majority’s ruling as upholds the judgments of conviction entered against each of the defendants, but I respectfully dissent from the reinstatement of the verdict against Jones for violation of 21 U.S.C. § 848 (1982). The majority finds that the trial judge made one error, that the jury made another, and that these two errors offset one another, thus validating the jury’s verdict against Jones on the § 848 count. Even if it were appropriate to conclude that “[here] two wrongs do make a right,” Majority Opinion ante at 520, in my view, the record reflects not two but at least three errors, and I see no reason to believe that the jury’s verdict was not the product of confusion.
Jones was indicted on six counts. Count 1 charged him with having conspired from January 1976 to December 1983 to violate the narcotics laws, in violation of 21 U.S.C. § 846 (1982); counts 2 through 5 charged him with substantive crimes of possession of controlled substances, in violation of 21 U.S.C. § 841 (1982); and count 6 charged him with having engaged in a continuing criminal enterprise, in violation of 21 U.S.C. § 848. The government sought to establish Jones’s liability for the substantive offenses under the Pinkerton doctrine, Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946), whereby a coconspirator who does not directly commit a substantive offense is liable for that substantive offense if it was committed by another coconspirator in furtherance of the conspiracy.
1. The Trial Court’s Error
Section 848(a) provides severe penalties for a person convicted of engaging in “a continuing criminal enterprise,” which is defined in § 848(b) as violation of a felony provision of the narcotics laws where “such violation is a part of a continuing series of [such narcotics] violations” undertaken “in concert with five or more other persons” whom the defendant has organized, supervised, or managed, and from which the defendant has obtained substantial income or resources. The term “continuing series of violations” has been interpreted to require proof of three or more separate felony violations of the narcotics laws. See, e.g., United States v. Young, 745 F.2d 733, 747 (2d Cir.1984), and cases cited therein, cert. denied, — U.S.-, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985); United States v. Losada, 674 F.2d 167, 174 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982). In instructing the jury as to the elements of a § 848 offense, the trial judge told the jury that, in order to convict, it must find three separate narcotics violations but that it could not use for this purpose a conspiracy in violation of § 846 or any of the substantive § 841 offenses alleged in counts 2-5 (the Pinkerton counts).
I agree with the majority that, in light of United States v. Young, decided some months after the conclusion of the trial in the present case, the trial court’s instruction to the jury not to consider a § 846 conspiracy as a predicate violation for purposes of § 848 liability was erroneous. It is clear, however, that the jury disobeyed this instruction.
2. The Jury’s First Error
Having been given a special verdict form on which to enter its findings as to the nature, places, and dates of Jones’s three separate narcotics violations upon which a verdict of his guilt on the continuing criminal enterprise count was predicated, the jury listed three predicate violations as follows:
1. Jan. 1, 1978-Dec. 31, 1978 Harlem Community Pharmacy Title 21 U.S.Code Sec. 846
2. Jan. 1, 1979-Dec. 31, 1979 Harlem Community Pharmacy *527Title 21 U.S.Code See. 846
3. Jan. 1, 1980-Dec. 31, 1980 Harlem Community Pharmacy Title 21 U.S.Code Sec. 846
Counsel for both sides interpreted the three offenses listed as referring to the Pinkerton § 841 offenses charged in counts 2-4, even though the jury cited § 846 as the provision violated. Perhaps this interpretation was based on the jury’s choice of dates listed, which matched the time periods alleged in counts 2-4; however, those dates also appeared in count 1, which charged a § 846 conspiracy, and Harlem Community Pharmacy is expressly mentioned only in count 1, not in any of the Pinkerton counts. Regardless, however, of whether it used conspiracy or the Pinkerton substantive offenses as its § 848 predicates, the jury clearly disobeyed the trial court’s instructions, for it had been instructed that it could use neither type of offense as § 848 predicates.
The majority concludes that since the trial court’s instruction was erroneous and the jury disobeyed that instruction, the verdict is valid. The soundness of this proposition is not clear to me. When the jury is given proper instructions and returns a general verdict, we assume that the jury has deliberated in accordance with the instructions it has received; and if there is any rational basis on which it could have arrived at its verdict within the legal framework it was given, we assume that is the basis on which it has operated. When, however, the jury returns a special verdict that clearly reveals that it has disobeyed the court’s instructions, we have no way of knowing (regardless of whether those instructions were correct or erroneous) within what legal framework the jury made its decision. It is inappropriate to assume that a “lay jury will know enough to disregard the judge’s bad law if in fact he misguides them. To do so would transfer to the jury the judge’s function in giving the law and transfer to the appellate court the jury’s function of measuring the evidence by appropriate legal yardsticks.” Bollenbach v. United States, 326 U.S. 607, 613-14, 66 S.Ct. 402, 405-06, 90 L.Ed. 350 (1946) (emphasis added).
In the present case, we surely have no basis for thinking the jury was prescient as to how we would decide the Young case or that it had any belief that the trial court’s instructions should not be followed. The reasonable inference is that the jury believed it was following the court’s instructions, and the fact that it plainly did not suggests that the verdict was based on some misunderstanding. I am loath to reinstate a jury verdict of guilty that was the product of confusion.
3. The Jury’s Second Error: Version One
Even if it were logical to conclude that the court’s erroneous instruction and the jury’s disobedience were mutually offsetting errors, I would think it inappropriate to reinstate the verdict, for the jury’s apparent misunderstanding of the court’s instructions was not its only error. As indicated above, the language of the jury’s special verdict bespoke additional confusion as to whether the jury had intended to list conspiracy offenses or Pinkerton offenses as the three predicate acts. The parties appear to agree that the jury intended to cite § 841 and to find as predicate acts the Pinkerton offenses charged in counts 2-4 of the indictment. If the parties are correct, the jury’s error in citing § 846 rather than § 841 as the section violated in these predicate offenses — to which, as discussed below, it adhered after questioning by the court — is further proof of the jury’s confusion in its consideration of the § 848 count.
4. The Jury’s Second Error: Version Two
Finally, it is hardly clear to me that we should accept the parties’ interpretation of the jury’s verdict as merely citing the wrong statutory section. As set forth in Part 1 above, every word of the jury’s specification of predicate offenses is part of count 1 of the indictment, the § 846 count. Further, when the verdict was returned and the government’s attorney sug*528gested that there was some apparent confusion in the jury’s listing of predicate offenses, the trial court immediately sought clarification. It asked the jury whether it really did intend to refer to § 846. The jury’s foreperson responded in the affirmative:
THE COURT: Members of the jury, I should address this to the foreperson. As to the defendant Charles Jones under Count 6, the finding of guilty, you have with you the indictment and my charge. When you cite the three crimes, Title 21 United States Code 846, that is exactly what you intended to put; is that correct?
THE FORELADY: Yes, ma’am.
Thus, notwithstanding counsel’s view that the jury intended to predicate § 848 liability on the § 841 Pinkerton counts, the jury affirmed that it had intended to find predicate offenses in violation of § 846. The trial court then found that the jury “mean[t] exactly what the verdict sa[id].”
While perhaps we might have greater confidence in the jury’s affirmation if the trial court’s question had been less leading, I do not believe this Court should so easily ignore either the section cited in the special verdict, or the jury’s affirmation that it in fact intended to cite § 846, or the trial court’s finding, after explicit inquiry, that the jury intended, to cite § 846. Rather, I think it more appropriate to assume that the jury’s citation of § 846 as the section violated in the three predicate offenses did not misspeak its intention. This assumption, however, does not mean that the jury did not commit a second error, for it appears to me that the jury erred in finding three separate conspiracies as the necessary three predicate felony violations. Obviously in some cases there could be three separate conspiracies that could serve as such predicates, but in the present case, count 1 charged Jones with having engaged in a single conspiracy that included the entire period covered by the three separate offenses found in the special verdict. The jury, properly instructed by the court as to single vs. multiple conspiracies, found Jones guilty of that single conspiracy, and, as the government’s attorney stated after hearing the special verdict, “It seems very unlikely they thought there were separate conspiracies going on in those years.”
Thus, it appears that the jury took a single conspiracy, of which it found Jones guilty under count 1, and carved out of it three precise one-year segments in order to find the three separate felony violations needed to support its § 848 verdict. There is a paucity of legislative history on § 848, but what little there is does not in any way suggest that Congress intended that the artificial segmentation of a single conspiracy into several should suffice to satisfy the requirement that there be a continuing “series” of violations.
Conclusion
We are asked to reinstate a verdict on a count as to which (1) the trial court instructed the jury erroneously, (2) the jury mistakenly disobeyed those instructions, and (3) the jury either (a) further erred in identifying (and confirming) the section under which it found predicate violations, or (b) further erred by segmenting a single conspiracy into three separate conspiracies in order to find three § 848 predicates. Deference that we give to jury verdicts on appeal is based on our evaluations of what a rational juror may make of the evidence, operating under instructions that are not erroneous or misleading. I am hard pressed to emerge from a review of this case with a clear sense that the jury’s § 848 verdict against Jones was a reasoned one based on valid doctrine rather than the product of confusion. I therefore would not reinstate the verdict against Jones on count 6.