Biden’s pardon, who missed out on the historic move

Justin Machacek is a Texan very familiar with the federal side of possession charges.

So of course he understands how the historic Biden move will see 6500 people getting pardons for federal cannabis possession charges. He also understands who it’s going to leave behind federally as well.

While many are praising the move with exuberance, some are not as enthusiastic about the move. Some Americans that have possession charges that are complicated, might not see the pardon take any effect on them. And pardons might not even be enough to solve the issues the POTUS claims it will.

Justin Machacek was the owner operator of Boho Alchemy, a processing and indoor cultivation facility focused on making RSO/FECO for cancer patients in Oklahoma. Machacek maintained residence in Texas at the time and commuted daily. That was until TX Highway Patrol pulled him over for allegedly texting and driving one evening returning from work.

“During the stress and confusion of the COVID pandemic, I made a short-sighted and foolish decision to bring some work home with me so that I wouldn’t miss another dinner with my family,” Machacek stated to TCC

After being stopped the officer engaged in a fishing investigation and began questioning him about his branded hat & T-shirt, where he worked, and other questions before eventually stating that Machacek smelled like marijuana (what facility operator for cannabis doesn’t after a day of work). Under plain smell doctrine, the claimed smell was enough cause to search the vehicle. What officers found was nothing truly wrong. They found a man who was exercising his 2nd amendment rights and trying to balance work and family life.

Justin Machacek was arrested and charged under Texas state law, charges that the state of Texas eventually dropped after Machacek agreed to forfeit the $8500 of business cash that was in his possession at the time. Due to the firearm involved, seven months after the initial incident the ATF indicted him on federal charges of federal felony, possession with intent to sell. In addition to the nonviolent felony for possession with intent to sell, Machacek was indicted under 18 U.S.C. § 922(g)(3), accusing that he was an unlawful user of a controlled substance in possession of a firearm, but those charges were dropped.

“The amount of cash and product on a person at any given point made us targets for crime and a firearm is often the only way to adequately protect yourself and your property. A right Oklahoma law explicitly protects,”

All of this over what was determined to be just 52 grams of marijuana.

At this point when most people are hearing a story such as this, they begin to ask, “well, didn’t they have an attorney? Why didn’t they get one? If they had an attorney, why was the attorney doing that or not really helping Why didn’t they fire that attorney and get another one?”

First, this is what Justin’s lawyer wouldn’t do. The attorney wouldn’t look at Machacek’s licenses, finances, and other evidence. The attorney refused to file any pretrial motions in his case and ignored Machacek’s research of case law in his defense. They did not address the entrapment that the Texas DPS officers utilized to search his vehicle. The attorney wouldn’t fight the plain smell doctrine which states any odor of marijuana creates probable cause for search. This attorney even denied Justin the opportunity to attempt jury nullification. Instead the high-priced attorney pushed Machacek and his family to sign a plea. 

Justin was a legally licensed producer who worked with cannabis lawfully day in and day out. If he’s legally allowed to produce cannabis, does he not have the right to smell like cannabis? Unfortunately that’s not the way the federal government or Texas law enforcement views the law. And at the time Machacek was a well known Republican Party activist and heavily involved in faith based productions. The court did not care, even back in 2020 under the recent Trump court appointments.

To those that support cannabis and the medical aspect, in and outside the movement, Justin notes he was literally one of the “good guys” who was doing everything in his power to produce medical cannabis the right way and build the legal industry. But the circumstances and legal precedent made him a target for local law enforcement to steal and launder his money through asset forfeiture. As well, for the federal government to make him a criminal and take his liberty.

So what’s up with the attorney? In this case, and in many others, the attorney has a reputation with the court. They have a reputation with the judge, the prosecutors working the district involved, etc. They do not want to cause too much strife between themselves and those portions of the court.

Many times they know that a judge feels a certain way about certain aspects of the criminal justice code, and to go against them could make matters worse. Some may consider it a sad state of affairs within our government that a judge that is to be an arbiter of what the law is and take in consideration both sides of the debate, will go into a hearing with their mind possibly made up and not even really allow an attorney to represent their clients and their side of the debate equally.

Hiring another attorney may wind up having you forfeit the rest of your deposit on the current attorney, a request has to be made to the judge overseeing the case and they may deny it, and another attorney may wind up being the same way or not even willing to take the case for any amount. Given this case was going to federal court, it could be likely not many attorney’s would be willing to take on the case at all.

“I tried to explain to my counsel that I was not a “drug dealer” and that even my finances would prove that I didn’t have illegal income.”

Justin noted that his companies were struggling fighting the black market producers that had no issue cheating the system. None of that was given any consideration.

“Justin was in over his head in this industry because of funding, competing with larger producers and the black market,” his attorney, John Hunter Smith, wrote in his sentencing memo.

Justin said that he wanted to fight it in trial, but the court revoked his bail. A court-required drug test came back positive for marijuana. So even if Justin was in a medical program anywhere, it wasn’t considered enough to keep him out of federal prison. At that point he notes that the system had him locked in a cage with violent convicted felons. His family was concerned for his safety and he notes that he didn’t have the money to continue to trial. So under duress he took the plea so that he would be able to be at his daughter’s high school graduation and be reunited with his family.

Justin Machacek was sentenced to six months, but had already served that with pre-trial custody. Currently he is still under supervised release. This means that he can’t travel without approval, and will have to submit to random UAs. He was forced to complete a treatment program and have to report to a parole officer monthly. The judge had to give him that for two years by law. The judge had zero discretion.

Justin won’t be getting a pardon, as his charges included an intent to sell tacked on it. And that wouldn’t even wipe it clean either. Machacek noted to TCC that his knowledge only expungement wipes it clean.

“Even pardons leave the mark on your record. I believe that’s why Biden is going to issue certificates of pardon as proof for offenders. They will still struggle and have to show they aren’t criminals. What really blows my mind to this day is that I was sentenced for less than two ounces of marijuana and turned into a federal felon with no way of ever becoming a “lawful citizen” again without expungement.”

It took Justin five months to find a decent job, which he is extremely grateful for, but even now he’s working well below his qualifications. Just noted that his family has endured tremendous heartache and financial struggle for them to even begin to put our lives back together. He thanks God that he has them and a solid support system. He doesn’t know where he’d be without them and it troubles him deeply to think of those trying to come back into society without that same support.

“I’m branded as a criminal for the rest of my life, can’t vote in this election and can’t protect my family with a firearm for the rest of my life.”

But Machacek isn’t totally upset with the news. Justin believes that the good news is the promise of expeditious review of scheduling. To him, based on comparison of other drugs in the category/schedules it should be descheduled entirety or maybe put in schedule V

All of this goes to show that the disparity between states and no federal guidance has turned this industry into a mess that ruins lives even when doing it the right way.

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