United States Of America v. Hook,  1999 U.S. App. LEXIS 26518 (7^th Cir. October 21, 1999)-Hook, an attorney, was convicted by a jury of one count of theft from an employee benefit plan, three counts of money laundering, and three counts of wire fraud, after he engaged in a series of illegal transactions on behalf of his client, Wittek Industries, Inc. Carmen Viana, CEO and sole director of Wittek, sought to close out many of the sixteen existing pension and profit sharing plans, but was informed that one of these plans, "the Retirement Plan for United Steel Workers, Local 6141, Employees of E.C. Manufacturing Division, Wittek Industries, Inc." (the "6141 Plan"), was under funded and that Wittek's contributions to this plan were delinquent. When attempts to solve these financial problems failed, Viana contacted attorney George Hook, who in turn contacted an ERISA specialist colleague Drake Boutwell.

Viana approached Boutwell with the idea of removing funds from the 6141 Plan to fund Wittek through a sale of Wittek assets to the plan. Boutwell informed Viana and Hook that this was illegal, but suggested formation of a real estate corporation whose equity would be held by the 6141 Plan in majority and Viana in minority. This corporation would be able to borrow from the 6141 Plan.  Boutwell helped Hook and Viana convince the plan’s custodian, Manufacturer's Bank of Detroit, to allow borrowing from the plan by shifting trusteeship of the 6141 Plan from Wittek directly to Viana in her personal capacity, and by drafting an opinion letter affirming legality of the transaction. Thereafter, Hook and Viana took out several more loans, using the proceeds to purchase CD’s which they could pledge as collateral—all with the ultimate purpose of funneling funds from the Plan to the financially failing Wittek Industries, Inc.

On appeal, this court focused on Hook’s two primary arguments. First, Hook asserted that prosecution had been precluded by judicial estoppel based on the ruling by the United States District Court for the Western District of North Carolina in P.B.G.C. v. Wittek that the 6141 Plan was terminated on February 13, 1991, which was before Hook’s conduct occurred (and therefore he could not have stolen from an ERISA plan). This court refused to accept "Defendant's mind bending logic that a retroactive termination designed to establish the level of benefits for defrauded plan members should decriminalize the conduct of the parties who have substantially aggravated the deterioration of the plan." The government's position that the plan was an ERISA plan at the time that Defendant defrauded it was not affected by the establishment of a date to set benefits.

Second, Hook argued that the district court's grant of the government's motion in limine and evidentiary rulings at trial prevented him from effectively raising a defense. This court found that the government’s motion in limine to preclude Hook from presenting the above argument about the Plan’s termination date was not error because the Hook’s conclusions were wrong as a matter of law. For the same reason, this court also refused to find error in the exclusion of Hook’s expert witness testimony stating that the 6141Plan was no longer an ERISA plan since the employees were no longer employees within the meaning of ERISA as a result of the 1991 closure of the plant. Hook’s several other procedural objections were found by this court to be equally groundless.