A Colombian man charged with a weapons violation in connection with major federal raids on Colorado medical-marijuana businesses says his indictment should be thrown out because the charge is unconstitutional.
Hector Diaz was indicted on one count of being in possession of a firearm while in the United States on a non-immigrant visa. He was arrested last November, after federal agents raided a house in Cherry Hills Village where he was staying — one of 16 addresses hit in a sweep of medical-marijuana businesses that investigators believe may have ties to drug cartels.
Diaz was not named in a search warrant as a target of the raids, but, after his arrest, investigators disclosed they had obtained an e-mailed photo of Diaz appearing to show him holding four different guns inside the Cherry Hills Village home.
Federal law makes it a crime for foreigners briefly visiting the United States to possess firearms, with an exemption made for those with hunting permits.
But, in a motion filed this month, Diaz’s lawyer says the charge against Diaz violates the Second Amendment right to bear arms. The motion also argues that the distinction between visitors with hunting permits and those without is arbitrary and a violation of the Fourteenth Amendment’s guarantee of equal protection.
“It is unquestionable that the vast majority of personal constitutional rights apply to non-citizens as well as to citizens,” the motion argues.
In a separate motion, Diaz — who is also known as Hector Diaz-Martinez — argues his indictment should be dismissed because of selective prosecution and notes several news stories about shooting ranges that cater to foreign visitors, even though those visitors don’t possess hunting permits. Federal agents have never sought to shut down the ranges or prosecute people who visit them, the motion states.
“It is apparent that because Mr. Diaz-Martinez is a latino from a country believed by the government to be involved in the illegal drug business, he is being singled out for prosecution based on his race and nationality,” the motion argues.
Prosecutors have not yet responded to the motions. In a separate filing this month, prosecutors received the judge’s approval to redact information from copies of the search warrants they have to share with Diaz’s attorney. Releasing the information, prosecutors argued, “could substantially jeopardize the ongoing investigation due to potential destruction of evidence, flight from prosecution, and other obstructive conduct.”
John Ingold: 303-954-1068, email@example.com or twitter.com/john_ingold