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They were licensed to sell marijuana; now they face years in federal prison

Two men started legal marijuana businesses in Oklahoma but were caught with pot in North Texas. Now they’re behind bars, charged with being drug traffickers due to inconsistent laws and enforcement.

They’re considered licensed small business owners in one state and accused drug traffickers in another, just across the border.

Don Pirtle and Justin Machacek both learned the hard way about the nation’s capricious patchwork of marijuana laws in which Texas, where marijuana is illegal, is surrounded by states that have legalized it for medical treatment.

The two men are facing felony drug trafficking charges in North Texas federal court despite having state licenses to grow and process marijuana in Oklahoma. Both men are facing multiple years behind bars because of their enterprising spirit.

The lack of consistency in marijuana laws across the nation has created disparate legal outcomes for people involved in practically the same conduct. The Justice Department has said it will not enforce federal marijuana laws against people and companies in states that have legalized the drug for the medical or recreational use of cannabis.

Critics say that creates a system of unequal justice.

Olivia Naugle, legislative analyst at the Marijuana Policy Project, a Washington D.C., nonprofit advocacy group, said Texas remains one of 14 states with no effective medical cannabis law. And that leads to situations in which Pirtle and Machacek now find themselves, she said.

“This is yet another devastating consequence of the glaring and untenable conflicts between state and federal laws when it comes to cannabis legalization,” Naugle said. “Arresting adults for cannabis offenses is a massive waste of law enforcement officials’ time and resources, and it does nothing to improve public health or safety.”

Pirtle grew up in a tough neighborhood in southern Oklahoma that forced him to “adopt a hustle” to survive, according to an online biography. Machacek went to Rockwall High, studied business at Southern Methodist University, and became active in state Republican politics.

Don Pirtle at his commercial growing business in Oklahoma.
Don Pirtle at his commercial growing business in Oklahoma.

After repeatedly getting arrested for selling and using marijuana when he was younger, Pirtle, 45, decided to take advantage of Oklahoma’s 2018 pot law and do it right. The convicted felon, a native of Ardmore, Okla., formed a business there and obtained a state license to grow marijuana to sell to dispensaries.

But he was caught growing the plant inside a Collin County house where he was staying when the COVID-19 pandemic first gripped Texas. Pirtle, who has pleaded guilty, now faces 6 1/2 years in federal prison under his agreement with the government.

“I just never assumed that I would end up in this situation,” Pirtle said in an interview from jail. “I don’t understand it. I feel like they gotta come up with something better than this.”

Machacek, 42, lives in Fort Worth and is a television producer and independent “faith-based filmmaker” who has been active in Republican politics, according to online biographies. He holds strong libertarian views, was a supporter of former Texas Congressman Ron Paul, and is a vocal proponent of marijuana legalization in Texas.

He is currently awaiting trial and faces decades in prison if convicted.

“This is a MAJOR unresolved conflict in our state and federal law,” Machacek wrote on Facebook in August.

The Eastern District of Texas is one of the toughest in the nation for drug enforcement. Juries in that district, which includes Denton and Collin counties as well as large rural areas in the northern and eastern parts of the state, tend to be white, conservative and religious. And drug sentences are often very long.

The U.S. attorney’s office there declined to comment. But Attorney General Merrick Garland told members of Congress earlier this year that enforcing marijuana laws is “not a good use of our resources.”

However, many Texas police chiefs and sheriffs have fought legislative efforts to expand medical marijuana use in the state, arguing that it is addictive and harmful and presents a public safety threat. The Texas Police Chiefs Association and the Sheriffs Association of Texas have said many marijuana arrests also involved weapons and other drugs like heroin and cocaine.

Marijuana remains categorized as a Schedule I drug under the federal Controlled Substance Act along with heroin and cocaine, meaning it has little or no medical use and a high potential for abuse. But 19 states and Washington D.C. have legalized marijuana for adults, and about three-dozen states have passed laws allowing the sale of marijuana for medical purposes.

Not Texas.

“This approach leads to a disparate impact on individuals and selective prosecutions across the country,” said Aaron Wiley, a defense attorney and former federal prosecutor in Dallas.

A better idea would be to “leave these matters to the states,” he said. Or if not, the U.S. should have a consistent federal policy on enforcement, Wiley said.

New start?

Pirtle grew up in Ardmore, where he ran into legal trouble as a young man during the 1990s. His arrests were for nonviolent drug charges, he said. An online bio says he grew up in “some of the toughest neighborhoods” in the city and “was surrounded by the stereotypical violence associated with the streets and gang life.”

“He knew this was not the life he wanted and would end up dead or in prison,” the bio said.

Most of his convictions resulted in probation, records show. But Pirtle was sentenced in 2001 to six years in an Oklahoma state prison for a drug case. He said he served three years and that it was the last time he’d faced serious legal trouble prior to the current federal case.

Pirtle said he went to college to escape the streets but still had trouble with police racially profiling him. He started rapping about his experiences and produced albums. An opportunity for construction work brought him to Texas about two decades ago, he said, although he still maintains strong ties to Oklahoma.

He obtained his Oklahoma marijuana license in 2019 for his company, Royalty Rains 3000.

The state has a liberal medical marijuana law, and business there is booming. Licenses for dispensaries, growers and processors are relatively easy to obtain, and Oklahoma doesn’t limit the number it issues. As a result, the state has the second-highest number of pot stores per capita in the nation, officials there say.

Pirtle said he was staying with his then-girlfriend and their two children in Anna during the COVID-19 lockdown and experimenting with growing techniques for his business. He said he wasn’t selling drugs out of the house.

“I wanted to help people. I believe it has so many medical benefits,” said Pirtle, who has a card to purchase marijuana legally in Oklahoma to treat his depression and anxiety.

Don Pirtle
Don Pirtle

The Collin County Sheriff’s Office received an anonymous tip in July 2020 that marijuana was being grown in the house. Police searched it the following month and found “multiple marijuana plants in the living area, master bedroom, and garage,” court records show.

Officers seized 62 marijuana plants, 22 jars of cultivated marijuana, THC gummies and oils, and three pistols, records say. The state did not pursue charges, but federal authorities indicted Pirtle last November.

A federal judge ordered him held in custody after noting that his criminal history included 13 drug-related charges, seven of which resulted in convictions, dating back to when he was 18. Pirtle pleaded guilty in July to a federal marijuana distribution charge and to being a felon in possession of a firearm.

Pirtle said he took the plea deal because he wanted to avoid a potentially longer sentence if a jury convicted him. Police didn’t want to hear anything about his legal pot business in Oklahoma, he said.

“They literally didn’t care. It seemed like they had their mind made up,” he said. “They made it seem like I was some great drug trafficker.”

Heather Pirtle, his wife, said Don had built a structure by hand to house the business in Oklahoma. It had been projected to generate between $3 million to $6 million in sales the first year, she said, but will now likely wither and die before ever getting started.

She said her husband passed all of Oklahoma’s qualifications and background checks for a commercial marijuana growing license.

“We were completely caught off guard,” she said about the federal charges.

Pirtle said he had hoped to join the many others in Oklahoma who are turning marijuana growing into a legitimate and lucrative career. “I thought it would be a profitable business,” he said.

He said he enjoys growing the plant and experimenting with different nutrients and techniques. “It’s like a garden.”

Marijuana advocate

Machacek’s online bios say he became active in politics about a decade ago and worked for Ron Paul’s 2012 presidential campaign. He has served in various roles, including as a state delegate for the Texas GOP convention, according to his LinkedIn profile.

Like Pirtle, he also saw a business opportunity when Oklahoma legalized medical marijuana in 2018. Machacek formed a pot processing business there called Boho Alchemy, which his LinkedIn account says cultivates and processes medical cannabis products.

He was arrested in May on charges of distributing marijuana since around September 2018 and having a gun, court records show. Federal law makes it a crime for a user of illegal drugs to own a firearm even if they have no criminal record.

His indictment says he possessed with intent to distribute or dispense “a mixture or substance containing a detectable amount of marijuana or hashish oil.”

A federal judge initially allowed Machacek to travel to Austin for his “lobbying efforts to legalize marijuana in the state of Texas” while he awaited trial, court records show. The judge also gave Machacek time to hire a manager to run his business.

But he’s been in custody since October when a judge found that he violated the terms of his release. A court-required drug test came back positive for marijuana, records show. A trial date is set for December.

Texas has a law that allows farmers in Texas to grow hemp as an industrial crop. But the marijuana is still illegal to grow or sell in the state.
Texas has a law that allows farmers in Texas to grow hemp as an industrial crop. But the marijuana is still illegal to grow or sell in the state. (2013 File Photo / The Associated Press)

“Texas will spend millions and lose the opportunity of the economic benefit from cannabis taxation,” Machacek said in a Facebook post in May. “Meanwhile, Texas patients will continue to suffer and have to seek refuge in other legal states.”

Machacek’s attorney and his wife could not be reached. But one of his friends said he was keen to help people with health problems through his marijuana business.

“For him, it’s a medical issue,” said Jarrod Atkinson, a Dallas business consultant. “He always refers to it [marijuana] as medicine.”

Atkinson, who met Machacek through their shared interest in libertarian politics, said he reached out to potential investors on his friend’s behalf early on but that many felt it was too risky.

Legal marijuana businesses must deal with large amounts of cash because banks are generally afraid of violating federal law, he said. And that makes it difficult to move money. If you’re pulled over while transporting large amounts of cash in states like Texas, police could not only confiscate the money and keep it through civil forfeiture, they could also arrest you, Atkinson said.

“As a political activist who’s also a libertarian, it presents a really interesting challenge,” he said. “It seems like it’s just too much risk.”

Kevin Krause. Kevin has worked for The Dallas Morning News since 2003, and he has covered federal criminal courts for the past six years. Kevin has been a journalist for 26 years. Kevin is a multiple recipient of the Stephen Philbin Award for excellence in legal reporting. Kevin earned a BA from Boston University.

kkrause@dallasnews.com @KevinRKrause
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