Supreme Court

Gary Kollin, P.A.

gary-kollin-small Gary Kollin is a sole practitioner in a boutique law firm concentrating in criminal defense and civil rights litigation. He has represented clients in the state and federal courts charged with crimes ranging from petit theft to first degree murder including federal charges of drug trafficking and continuing criminal enterprises. Gary Kollin represents clients in the state and federal appeal courts and argued the case of Smith v. United States, 508 U.S. 223 (1993), before the United States Supreme Court.

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In 1992, Gary Kollin obtained the singular honor of being appointed by the United States Supreme Court to represent John Angus Smith in his case. On March 23, 1993, Gary Kollin argued the case before all nine justices. You can listen to Mr. Kollin’s argument before the Court and read along on the transcript by clicking here.

Less than 80 cases a year are argued before the Supreme Court. There are over 1 million practicing lawyers in the country. Only about 160 of those million get to argue before the Supreme Court each year and less then 7,000 practicing lawyers can claim the honor of ever having argued a case in the Supreme Court.

John Angus Smith challenged his conviction for the “use of a firearm during and in relation to a federal drug trafficking crime.” Smith tried to trade his guns for a quantity of cocaine. He sought to overturn his conviction arguing that the act of trading a firearm, solely as an item of barter, did not constitute the use of a firearm during and in relation to a federal drug trafficking crime.

The decision in Smith v. United States, 113 S.Ct. 2050 (1993), established the precedent which overturned the convictions in Bailey v. United States, 116 S.Ct. 1501 (1995), and Watson v. United States, 128 S.Ct. 579 (2007). The brilliant dissent by Justice Scalia in Smith identifies the fallacies of the majority opinion. As recognized by Justice Ruth Bader Ginsburg in Watson, Justice Scalia was correct that trading a gun is not using a gun.

It is better to receive than to give, the Court holds today, at least when the subject is guns. Distinguishing, as the Court does, between trading a gun for drugs and trading drugs for a gun, for purposes of the 18 U.S.C. § 924(c)(1) enhancement, makes scant sense to me. I join the Court’s judgment, however, because I am persuaded that the Court took a wrong turn in Smith v. United States, 508 U.S. 223, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993), when it held that trading a gun for drugs fits within § 924(c)(1)’s compass as “us[e]” of a firearm “during and in relation to any … drug trafficking crime.” For reasons well stated by Justice Scalia in his dissenting opinion in Smith, 508 U.S., at 241, 113 S.Ct. 2050, I would read the word “use” in § 924(c)(1) to mean use as a weapon, not use in a bartering transaction. Accordingly, I would overrule Smith, and thereby render our precedent both coherent and consistent with normal usage. Cf. Henslee v. Union Planters Nat. Bank & Trust Co., 335 U.S. 595, 600, 69 S.Ct. 290, 93 L.Ed. 259 (1949) (Frankfurter, J., dissenting) (“Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”).