UNITED STATES COURT OF APPEALS July 29, 2024 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

DAVID JOSHUA BARTCH,

Plaintiff - Appellee, No. 23-1211 v. No. 24-1049

MACKIE A. BARCH; TRELLIS HOLDINGS MARYLAND, INC.,

Defendants - Appellants. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:18-CV-03016-RBJ-MDB) _________________________________

Caitlin C. McHugh, Lewis Roca Rothgerber Christie LLP, Denver, Colorado, (Chad S. Caby, Lewis Roca Rothgerber Christie LLP, Denver, Colorado; David S. Musgrave, Gordon Feinblatt LLC, Baltimore, Maryland, with her on the briefs) for the Defendants – Appellants.

Paul Howard Schwartz, Shoemaker Ghiselli + Schwartz LLC, Boulder, Colorado, (Daniel Jozwiak, Shoemaker Ghiselli + Schwartz LLC, Boulder, Colorado; Johnathan A. Helfgott, Lahti Helfgott LLC, Denver, Colorado, with him on the briefs) for the Plaintiff – Appellee. _________________________________

Before HOLMES, Chief Judge, BALDOCK, and MATHESON, Circuit Judges. _________________________________

MATHESON, Circuit Judge. _________________________________ Appellate Case: 23-1211 Document: 010111086218 Date Filed: 07/29/2024 Page: 2

David Joshua Bartch (“Josh”) and Mackie A. Barch (“Mackie”) 1 were partners

in Culta, LLC, a marijuana business licensed to operate under Maryland law. Josh

temporarily relinquished his ownership in Culta. Even though Josh and Mackie had

agreed Josh could later rejoin the business, Mackie prevented him from doing so.

Josh sued Mackie and Mackie’s company, Trellis Holdings Maryland, Inc.

(“Trellis”), which holds a minority membership share in Culta, for breach of contract.

In response, Mackie and Trellis did not plead an affirmative defense that the contract

was illegal under federal drug laws. After a bench trial, the district court found

Mackie and Trellis liable for breach of contract and awarded Josh $6.4 million in

damages (the “original judgment”). Mackie and Trellis never appealed and also

never paid.

Josh sought to enforce the original judgment. The district court granted post-

judgment relief, ordering Mackie and Trellis to use their best efforts to sell Trellis’s

equity interest in Culta, to turn over the proceeds from any such sale, and to avoid

devaluing Trellis’s equity until the sale (the “judgment enforcement order”). Mackie

and Trellis appealed (No. 23-1211), arguing—for the first time—that (1) Josh lacked

standing to enforce the judgment because the redress he sought would violate the

Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801-904; and (2) the district court

1 Because the parties have similar last names, we refer to them as “Josh” and “Mackie,” consistent with their appellate and district court briefing.

2 Appellate Case: 23-1211 Document: 010111086218 Date Filed: 07/29/2024 Page: 3

lacked authority to award the relief under Colorado Rule of Civil Procedure

(“C.R.C.P.”) 69(g).

While that appeal was pending, Mackie and Trellis moved the district court to

reconsider the original judgment under Federal Rule of Civil Procedure (“F.R.C.P.”)

60(b)(4), making the same CSA standing argument. The court denied the motion (the

“original judgment reconsideration order”), and Mackie and Trellis appealed (No. 2