Thursday, October 26, 2023

Appeal Submarined

The United States Court of Appeals for the Fourth Circuit has granted the government's motion to dismiss an appeal of a defendant who had pled guilty to conspiracy charges

Diana Toebbe pleaded guilty pursuant to a plea agreement to conspiracy to communicate, transmit, or disclose Restricted Data of the United States Navy relating to Virginia-class nuclear-powered submarines with the intent to injure the United States or to secure an advantage to a foreign nation, in violation of 42 U.S.C. § 2274(a). At sentencing, the district court calculated her Sentencing Guidelines range and sentenced Toebbe to 262 months’ imprisonment, which was at the bottom of that range.


After carefully reviewing the entire record and considering all the arguments, we conclude that Toebbe has failed to make a sufficient showing to avoid the clear terms of her plea agreement, which she acknowledges she entered into knowingly and intelligently. We also conclude that the government did not breach the plea agreement. Accordingly, we grant the government’s motion to dismiss.

The facts

Diana Toebbe and her husband, Jonathan Toebbe, are highly educated professionals who, during the relevant period, were living in Annapolis, Maryland. Diana Toebbe holds a Ph.D. and worked in Annapolis as a high-school humanities teacher. Jonathan Toebbe worked in Washington, D.C., for the U.S. Navy as a nuclear engineer assigned to the Reactor Engineering Division of the Naval Nuclear Propulsion Program. In connection with this job, Jonathan Toebbe held an active Top Secret security clearance through the Department of Defense, as well as an active “Q clearance” through the Department of Energy, which granted him access to information involving or incorporating “Restricted Data,” as that term is used in the Atomic Energy Act of 1954. See 42 U.S.C. § 2014(y) 4 (defining “Restricted Data” to include data concerning “the use of special nuclear material in the production of energy”). In particular, he had access to classified information concerning the nuclear reactors used to power Virginia-class submarines, which are state-of-the-art warships costing approximately $3 billion each.

Over a period of several years, Jonathan Toebbe smuggled classified, Restricted Data that related to Virginia-class submarines from his workplace so that he could sell the data to a foreign nation. His wife, Diana Toebbe, knowingly and voluntarily joined the scheme, actively participating in its planning and execution.

Specifically, in April 2020, Jonathan Toebbe sent a package to a foreign government that contained a sample of Restricted Data and instructions for establishing a clandestine relationship to purchase additional material. That foreign government, however, provided the package to the FBI, which initiated a covert operation to identify the sender. Purporting to act on behalf of the foreign government, undercover FBI agents then began exchanging encrypted email messages with Jonathan Toebbe. After the FBI sent $10,000 in cryptocurrency to a payment address provided by him, the undercover agents arranged for him to conduct a “dead drop” of additional Restricted Data.

Thereafter, on June 26, 2021, Jonathan and Diana Toebbe traveled together from Maryland to a park in Jefferson County, West Virginia, where the FBI was conducting surveillance. The Toebbes hiked to the location in the woods that had been selected for the dead drop, and Diana Toebbe provided cover and acted as a lookout while Jonathan Toebbe hid a Ziplock bag that contained one half of a peanut butter sandwich. Inside the sandwich was an SD card (a secure digital memory card) wrapped in plastic wrap, and after the FBI paid an additional $20,000 in cryptocurrency, Jonathan Toebbe sent the agents a decryption code that allowed them to see that the data saved on the SD card was “Restricted Data relating to militarily sensitive design elements, operating parameters, and performance characteristics of Virginia-class submarine reactors.” There was also a typed message that included statements such as “I hope your experts are very happy with the sample provided” and “I want our relationship to be very successful for us both.”

Subsequently, Jonathan Toebbe conducted three additional dead drops, with Diana Toebbe accompanying him and serving as a lookout during two of the three. Specifically, on July 31, 2021, the Toebbes left behind, at a prearranged location in south-central Pennsylvania, a typed message that proposed that Jonathan Toebbe would provide 51 packages of information over time in exchange for $5 million in cryptocurrency. The message also stated that the material “was slowly and carefully collected over several years” and “smuggled past security checkpoints a few pages at a time” and that one set of information “reflects decades of U.S. Navy ‘lessons learned’ that will help keep your sailors safe.” Then, about a month later, Jonathan Toebbe alone conducted a drop in eastern Virginia, leaving behind an SD card hidden in a chewing-gum package that contained additional Restricted Data relating to Virginia-class submarine nuclear reactors, as well as a typed message indicating that he had told “only one other person . . . of our special relationship” — i.e., Diana Toebbe — and that he “trust[ed] that person absolutely.” The message stated further, “We have cash and passports set aside for th[e] purpose” of fleeing the United States. Finally, on October 9, 2021, both Jonathan and Diana Toebbe returned 6 to Jefferson County, West Virginia, to conduct a drop, which was the fourth dead drop. Immediately after completing it, however, they were arrested by FBI agents.

No relief

While Toebbe finds her sentence to be a heavy one — indeed too heavy for the conduct as she assesses it — her violation of law was a most serious one. She actively participated, for personal financial gain, in a conspiracy to communicate important Restricted Data about the U.S. Navy’s Virginia-class submarines, with actual harmful consequences and potentially catastrophic ones. The U.S. Navy advised the district court that the betrayal by the Toebbes had far-reaching ramifications for the United States and the sailors and the families that serve the United States Navy, enhancing the risk faced by nearly 25,000 active-duty submarine sailors. And as the district court noted, “the damage here has already been done.” In addition, as the Navy stated, her conduct threatened “one of the [United States’] prized strategic advantages.” The gravity of Toebbe’s conduct must not be diminished on the ground that it was not as extensive in the overall scheme as was her husband’s. She knowingly engaged in the full scope of the conspiracy — not only providing cover and lookout but also engaging in planning and strategy — recognizing the significant damage that it could cause to the United States. Indeed, her understanding of the damage is reflected by the millions of dollars that she and her husband demanded and expected from their betrayal.

Clearly, betraying secrets about nuclear submarines is a serious threat to national security. (Mike Frisch)

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