US v. Toebbe: Diana Toebbe’s husband, Jonathan, was a nuclear engineer with the US Navy’s Reactor Engineering Division, with high-level clearance to handle “restricted material.” In 2020, Jonathan offered restricted material related to Virginia-class nuclear submarines to a foreign nation, which notified the FBI. Subsequently, Jonathan delivered several SD cards with restricted material on them via dead drops during which Diana would act as a lookout, in return for payments in cryptocurrency. Each were charged (in separate cases, it appears) with conspiracy to communicate restricted data and two counts of aiding and abetting the communication of restricted data.
Diana entered into a binding plea agreement with the Government under Rule 11(c)(1)(C) of the Rules of Criminal Procedure in which she agreed to plead guilty to conspiracy in return for a sentence of no greater than three years in prison. At the plea hearing, the Government described Diana’s role as “limited” and “passive” in a “scheme led be her husband,” and that her “offense boils down to acting as a cover and a lookout on three occasions in a three-month period. Nothing more than that. Nothing less.” The district court rejected the plea agreement, calling the 36-month sentence “strikingly deficient” given the nature of the offense and the danger it posed to US naval forces. The district court noted that the probation officer had calculated the advisory Guideline range as 151 to 188 months and “found no justifiable reasons for accepting a plea agreement that would bind it to impose a sentence that far below that range.”
Diana and the Government then entered into another Rule 11(c)(1)(C) plea, in which she again agreed to plead guilty to conspiracy. This agreement bound the district court to impose a sentence of “not more than the low end of the applicable Guideline range,” which would be determined by the district court. The parties agreed to an advisory Guideline range of 108 to 135 months, based on a 3-level departure for substantial assistance and acceptance of responsibility. The plea agreement contained a waiver of Diana’s right to appeal any sentence imposed pursuant to the language above. After the agreement was reached, the probation officer, on their own initiative, contacted the jail where the Toebbes had been detained and learned that Diana had tried to send Jonathan a pair of letters making “attempts to induce her husband to . . . provide statements to authorities affirming her ignorance of his criminal scheme.”
At sentencing, the district court denied the Government’s motion for substantial assistance, assessed a two-level enhancement based on the letters, and declined to award a reduction for acceptance of responsibility, producing an advisory Guideline range of 262 to 327 months. Diana argued for a variance sentence “in the range of 3 to 4.9 years,” arguing that Jonathan “was the principal actor” who came “up with the idea to do this” and that a 262-month sentence would be an unwarranted disparity compared to other espionage cases. The Government argued for a three-year sentence, arguing that it was “universally accepted” that the “person with the access . . . should be punished more severely than someone who might have helped in some way.” It urged the district court to not give excess weight to the letters and reiterated the assistance that Diana had given, which was considered “significant” by both the FBI and the Navy. The district court imposed a sentence of 262 months, noting that this offense was “one of the most serious it had ever seen” and concluding that far from being a minor participant “it was most probably Mrs. Toebbe that was driving the bus.” The district court sentenced Jonathan to 232 months.
On appeal, the Fourth Circuit granted the Government’s motion to dismiss the appeal without reaching the merits of any of Diana’s arguments. She argued that the district court’s rejections of the parties’ position as to a departure and acceptance, and the Government’s ultimate support for a three-year sentence, resulted in a sentence she could not have anticipated at the time the plea agreement was signed. The Government argued that the language of the plea agreement covered the arguments Diana sought to make. The court agreed, ultimately concluding that the sentence was at the bottom of the Guideline range found to apply by the district court, who the plea agreement recognized had the ultimate authority on such calculations.
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