In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 23-2899 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

SCOTT CARLBERG, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:21-cr-00232-1 — Edmond Chang, Judge. 

____________________ 

ARGUED MAY 16, 2024 — DECIDED JULY 23, 2024 

____________________ 

Before EASTERBROOK, RIPPLE, and JACKSON-AKIWUMI, Circuit Judges. 

JACKSON-AKIWUMI, Circuit Judge. A jury convicted Scott 

Carlberg of four counts of wire fraud for fraudulently obtaining disability benefits from the United States Railroad Retirement Board. Carlberg asked the district judge to set aside the 

jury’s verdict because he believed the evidence did not show 

he intentionally participated in a scheme to defraud or made 
2 No. 23-2899 

representations that were material to the agency’s decision to 

grant him disability benefits. The judge denied Carlberg’s 

motion and ordered him to pay $279,655.22 in restitution—

the full value of benefits he received during the six-year period alleged in the indictment. Carlberg maintains both decisions were wrong. We disagree and affirm. 

I 

A 

Scott Carlberg began working at Soo Line Railroad in 1990. 

His work was cut short in October 2012, when he suffered a 

traumatic brain injury from exposure to electricity at the railroad. The injury prevented him from continuing to work at 

the railroad, so Carlberg filed an application for occupational 

disability with the United States Railroad Retirement Board 

(“RRB”) in May 2013. Based in Chicago, Illinois, the RRB is a 

federal agency that administers retirement, unemployment, 

and disability benefits for current and former railroad employees. 

To be eligible for an occupational disability annuity from 

the RRB, an individual must have a “permanent” disability 

that prevents them from working in their regular railroad occupation. But the RRB does not require prospective annuitants to cease all work. To the contrary, the agency allows annuitants to work other, non-railroad jobs and still receive benefits, so long as that job does not require a high level of physical or mental exertion and the annuitant falls under certain 

earnings thresholds each month.

Once the RRB awards occupational disability benefits, regulations mandate that annuitants periodically disclose their 

non-railroad related work and earnings to the agency. This 
No. 23-2899 3

mandate is made clear to applicants from the moment they 

apply for benefits. The application includes a certification requiring applicants to “immediately” notify the RRB “if I work 

for any employer, railroad or nonrailroad, or perform any 

self-employment work.” The certification also provides: “I 

know that if I am receiving a disability annuity and fail to report work and earnings promptly, I am committing a crime 

punishable by Federal law that may result in criminal prosecution and/or penalty deductions in my annuity payments.” 

Carlberg signed this certification when he applied for a disability annuity in May 2013.

Carlberg signed the certification again in February 2015, 

when he reapplied to the RRB for occupational disability 

“with a freeze.” Occupational disability with a freeze differs 

from the benefits Carlberg was already receiving because a 

“freeze” entitles an annuitant to early Medicare, tax benefits, 

and higher monthly payments. But to receive those additional 

benefits, the applicant must clear a higher bar: an applicant 

“must have a permanent medical condition that prevents 

[them] from performing any substantive gainful work”—not 

just work on the railroad. Under RRB regulations, substantive 

gainful work (sometimes called “substantial gainful activity”) 

includes any work “involving the performance of significant 

physical or mental duties.”

As with the regular occupational disability application, 

the application for occupational disability with a freeze requires annuitants to make certain attestations. Namely, they 

must attest that “if I make a false or fraudulent statement in 

order to receive benefits from the RRB or if I fail to disclose 

earnings or report employment of any kind to the RRB, I am 

committing a crime which is punishable under Federal law.” 
4 No. 23-2899 

They must also certify that “the information I gave to the RRB 

on this application is true to the best of my knowledge. I agree 

to immediately notify the RRB: If I work for any employer, 

railroad or nonrailroad, or perform any self-employment 

work.” As before, Carlberg signed this certification. The RRB 

approved Carlberg’s application for occupational disability 

benefits with a freeze in June 2015. 

B 

That last application for benefits, in February 2015, gave 

rise to Carlberg’s prosecution. In April 2021, the government 

charged Carlberg with four counts of wire fraud for lying on 

his application for disability with a freeze and in subsequent 

submissions to the RRB. The government alleged that while 

Carlberg was completing his application for disability benefits with a freeze, he was also negotiating to purchase the Parrot Bay Tanning Salon in Menomonie, Wisconsin. But the 

problem was not that he purchased the salon; RRB regulations did not bar that. The problem, according to the government, was that Carlberg “operated and managed the Salon 

and its employees” all while misleading the RRB about the 

substance of his work there. 

And when the RRB asked him to provide additional information about whether he was self-employed and the nature 

of his work, he handwrote on his application that he had “no 

work” and “no business.” In a subsequent report to the RRB 

in July 2015 and a call in April 2016, Carlberg represented that 

he was doing “small job[s]” like “blow[ing] off [the] driveway, water[ing] flower[s], and clean[ing] tanning beds” for 

10-20 hours per week. The government alleges that these 

statements were false and caused the United States Treasury 

to wire Carlberg disability benefits that he would not have 
No. 23-2899 5

been entitled to had he submitted accurate information to the 

RRB.

Carlberg contested the charges at trial. During five days in 

January 2023, the government presented evidence showing 

that, after purchasing the salon, Carlberg worked there daily.

His work included installing the security camera wiring, dealing with customers, and handling physical tasks throughout 

the day. He also used his personal credit cards to buy supplies 

for the salon. He did not report any of this work to the RRB. 

The government called several witnesses to make these 

points. It called analysts from the RRB, who explained the certifications annuitants make when applying for occupational 

disability benefits and how the RRB evaluates applications. It 

called a forensic accountant from the FBI to explain Carlberg’s 

financial statements and how he used revenues from the salon 

to pay down his personal credit cards. It called Carlberg’s 

family members, salon employees, and owners of neighboring businesses to talk about their observations of Carlberg’s 

work at the salon and how he consistently switched out various family members as nominal “owners” of the salon to hide 

his ownership. The government also presented audio and 

video from the undercover officers who worked the investigation.

Carlberg called witnesses, too. His brother, Kevin, testified about their upbringing and Carlberg’s relatively normal 

life before being electrocuted at the railroad. His daughter, 

Kaitlyn, testified about the family’s conversations leading up 

to the purchase of the salon, and how her mother was the one 

“in charge” of the business. She explained that the tasks her 

father completed at the salon were “pretty easy to do,” like 

checking in clients, cleaning the beds, running errands, and 
6 No. 23-2899 

ordering supplies. The bulk of Carlberg’s defense was supported by the testimony of Dr. David Lund, a clinical psychologist who treated Carlberg for a cognitive disorder related to his electrocution. Dr. Lund testified that Carlberg’s 

condition left him unable to be gainfully employed, and, in 

his view, Carlberg could work a retail job but not manage one. 

After considering this evidence, the jury convicted Carlberg on all counts. Shortly thereafter, Carlberg moved for a 

judgment of acquittal, arguing that the government failed to 

prove that he “knowingly devised or participated in a scheme 

to defraud and that the scheme to defraud involved a materially false or fraudulent representation.” He argued that 

“[w]hile [he] did receive payment from the tanning salon,” 

the total amount of those payments “did not even match the 

purchase price of the salon and barely surpassed legitimate 

tanning salon expense reimbursements.” Finally, he argued 

that the government failed to meet its burden because it “did 

not offer any evidence that the differences between the work 

he actually did at the tanning salon and what he disclosed to 

the RRB were material to any decision made by the RRB.”

The district court denied Carlberg’s motion. The court 

found “there was plenty of evidence to support the conclusion that Carlberg bought the business and then tried to hide 

his ownership and involvement.” Similarly, the court found 

the evidence established that Carlberg’s misrepresentations 

were material because the RRB witnesses testified that his approval for benefits was “based on Carlberg’s claimed inability 

to work.” The court sentenced Carlberg to 30 months’ imprisonment and ordered restitution to the RRB in the amount of 

$279,655.22—the total amount of benefits Carlberg received 

after filing his application for disability benefits with a freeze. 
No. 23-2899 7

On appeal, Carlberg challenges both the denial of his motion 

for a judgment of acquittal and the restitution award.

II

A 

Ordinarily, we review a district court’s denial of a motion 

for a judgment of acquittal de novo. United States v. Polin, 194 

F.3d 863, 865–66 (7th Cir. 1999). Under that standard, we leave 

the jury’s verdict undisturbed unless we find, after viewing 

the evidence in the light most favorable to the government, 

that “the record contains no evidence, regardless of how it is 

weighed, from which the jury could find guilt beyond a reasonable doubt.” See United States v. Farmer, 38 F.4th 591, 602 

(7th Cir. 2022), cert. denied, 143 S. Ct. 841 (2023). 

But this case is a little different because the argument Carlberg advances on appeal was not presented to or considered 

by the district court. In the district court, Carlberg simply argued that “the evidence fail[ed] to establish that [he] was engaged in a scheme to defraud” and his misstatements were 

not material. But Carlberg, having failed to convince the district court that his misstatements to the RRB were immaterial 

and that he did not engage in a scheme to defraud, now tells 

us that the evidence at trial was insufficient to sustain his conviction because the government failed to show that he “obtained property by dint of his bad conduct.” To do so, he argues the government would have had to prove that he was 

barred from “rightfully receiving disability benefits.” And to 

prove that, he asserts, the government had to show he earned 

more than $1,090 in a month—the maximum sum the RRB 

permits annuitants to earn before finding that they engaged 

in substantial gainful activity. But, Carlberg continues, he 
8 No. 23-2899 

never even turned a profit at the salon, so the government did 

not prove that he earned that amount. Therefore, he concludes, the government could not meet its burden to prove 

that he fraudulently obtained RRB property in the form of disability benefits.

We have previously explained that “when a defendant 

challenges the sufficiency of the evidence by motion for judgment of acquittal and makes specific arguments in support of 

that motion, any arguments omitted are thereby forfeited,” 

and our review is for plain error. United States v. Hosseini, 679 

F.3d 544, 550 (7th Cir. 2012) (citing United States v. Groves, 470 

F.3d 311, 324 (7th Cir. 2006)). Thus, the new argument Carlberg presents to us is arguably forfeited, making plain error 

the standard of review. It turns out, however, that, in this case, 

the standard of review does not change the outcome: Carlberg 

loses whether we review the district court’s decision de novo 

or for plain error because there was no error to begin with. 

The fatal flaw in Carlberg’s argument is that he assumes 

there was only one way the jury could find that he engaged 

in substantial gainful activity—he assumes that, to convict, 

the jury must have found that his earned income exceeded the 

maximum amount permitted by RRB regulations. But the evidence at trial undermines that theory. The evidence at trial 

established that, under RRB regulations, an annuitant could 

be found to have engaged in substantial gainful activity—and 

therefore be ineligible for benefits—if he undertook work that 

“involve[d] performing significant physical or mental duties,” regardless of his monthly income from that work. And 

the evidence at trial showed that Carlberg was engaged in just 

that type of work. 
No. 23-2899 9

For example, at the same time Carlberg was applying for 

RRB benefits in early 2015, he was also negotiating with the 

owner of the Parrot Bay Tanning Salon to purchase the property. And witnesses testified that after he purchased it, they 

would often find him working there, including negotiating 

with various companies to procure new security systems 

(which Carlberg installed himself), tanning beds, and other 

tanning supplies. 

The evidence showed that Carlberg’s work was not limited to handling the salon’s business on a high level. He was 

also engaged in hands-on, day-to-day work at the salon. Kristin Schenck owned an eatery down the street from Parrot Bay. 

She testified that she saw Carlberg at the salon almost daily 

from 2015 to 2020. When she saw him, he was working the 

front desk and engaged in physical labor like painting the 

building, shoveling the sidewalk, pressure washing the roof, 

blowing debris off the parking lot, and re-tarring the parking 

lot. Tammy Hollister, a former salon employee, testified that 

it was Carlberg who trained her when she started at the business, and who routinely ordered supplies and did maintenance for the building. Former customers testified that when 

they arrived at the salon, they observed Carlberg “on the 

roof,” planting flowers, shoveling the sidewalks, and “in the 

plow truck plowing.” And when the customers were ready to 

depart after receiving their tans, it was Carlberg who checked 

them out at the register.

Presented with this evidence, reasonable jurors could have 

easily concluded that Carlberg was engaged in the kind of 

“significant physical or mental duties” that would have precluded him from receiving benefits from the RRB had he reported the full extent of his work. Hence, we have no trouble 
10 No. 23-2899 

concluding that the evidence presented at trial was more than 

sufficient to support the jury’s verdict.

B 

Carlberg next argues that the district court erred in calculating the $279,655.22 restitution award because the government failed to “prove beyond a reasonable doubt that Carlberg [] earned over $1,090 in a month,” the maximum amount 

annuitants could earn at non-railroad jobs and still qualify for 

occupational disability benefits. He argues that because his 

income did not exceed that amount, he was entitled to the 

$231,929 in occupational benefits payments he received during the period alleged in the indictment. By his account, the 

proper restitution amount should have been $47,726.22—the 

value of the early Medicare benefits he received.

We review a district court’s “calculation of restitution for 

abuse of discretion, viewing the evidence in the light most favorable to the Government.” United States v. Griffin, 76 F.4th 

724, 749 (7th Cir. 2023). We will find an abuse of discretion if 

there is no evidence in the record on which the district court 

could have rationally based its decision. Brown v. J.I. Case Co.,

813 F.2d 848, 855 (7th Cir.), cert. denied, 484 U.S. 912 (1987). 

Carlberg’s restitution argument is derivative of his sufficiency-of-the-evidence argument and fails for the same reason: to prevail on the wire fraud charges, the government was 

not required to prove that he earned a certain amount of 

money—only that he materially misrepresented facts or omitted material facts about his work that met the RRB’s definition 

of substantial gainful activity. Once the jury found Carlberg 

guilty on all counts, it became the government’s burden to establish the actual or intended loss to the United States 
No. 23-2899 11

Treasury by a preponderance of the evidence. United States v. 

Dickey, 52 F.4th 680, 687 (7th Cir. 2022). 

The government met that burden by showing that its actual loss was the full extent of Carlberg’s ill-gotten occupational disability benefits during the period alleged in the indictment. At sentencing, the government called Brittani Jefferson, an operations analyst and disability trainer in the 

RRB’s Disability Benefits Division. Jefferson testified that analysts in her division examined the Inspector General’s Investigation Report plus exhibits and transcripts of witness testimony from Carlberg’s trial to determine whether a hypothetical individual like the one described in those documents 

would qualify for occupational disability benefits or a disability freeze under the RRB’s regulations. She explained that 

such a person would not be eligible for benefits from the RRB 

at all because the RRB would consider that person to be engaged in substantial gainful activity. 

The effect of that finding, Jefferson testified, was that no 

occupational disability benefits, much less with a freeze, 

would have been payable to Carlberg between 2015 and 2021 

based on the scope and scale of his work during that period. 

Carlberg, for his part, offered no testimony to contradict that 

given by Jefferson. So, relying on this largely unchallenged 

testimony, the district court found that “[t]he government 

ha[d] satisfied its burden by a preponderance of the evidence 

that the loss amount would be the full amount of the benefits,” so it awarded $279,655.22. Because that finding was consistent with the evidence introduced at sentencing, we cannot 

say the district court abused its discretion.

AFFIRMED.