The wife of a former Navy employee who attempted to sell nuclear-submarine secrets to a foreign nation argues that the 22-year sentence she got for her part in the attempted espionage violates her constitutional right to due process.
During a half-hour of oral arguments before the U.S. Fourth Circuit Court of Appeals on Sept. 19, Jessica Carmichael, representing Dianna Toebbe, argued that the hefty sentence Toebbe was slapped with in January was outside the guidelines of a plea agreement she signed. She is asking the court to ignore a provision of that plea agreement that waived her right to appeal her conviction and sentencing.
Toebbe’s attorney contended that when sentenced, the district court judge “stepped out of her role as a judge and into the role of an advocate,” before throwing the book at Toebbe, who was handed a longer sentence than her husband.
Diana Toebbe was convicted of conspiracy to communicate restricted data for being an accomplice to her husband, Jonathan Toebbe, who over several months in 2020 cooked up a scheme to steal Virginia-class submarine secrets to what he thought was a foreign government but which in reality was the FBI.
The extent of Mrs. Toebbe’s involvement in this scheme essentially amounted to acting as a lookout on three “dead drops” of information, according to an appeal of her sentence filed April 19 in the U.S. Fourth Circuit Court of Appeals.
Toebbe’s trial court, the U.S. District Court for Northern West Virginia, rejected an initial plea agreement, in which the parties agreed that a sentence of not more than thirty-six months imprisonment was appropriate for Toebbe’s part in the plot. The court accepted a second plea agreement prior to her January sentencing that included guidelines of between 36 and 108 months behind bars. She eventually was sentenced to 262 months, or nearly 22 years, in prison.
During the Sept. 19 hearing, Appellate Judge Julius Richardson seemed sympathetic to Toebbe’s argument, quizzing the federal prosecutor on why she was seeking to uphold Toebbe’s plea when the agreement essentially provided no benefit at sentencing.
“She was sentenced under the same guidelines that she would have gotten, had she gone to trial and been convicted on all counts,” Richardson said. “So it was no great benefit to her.”
The government can ignore Toebbe’s appellate waiver, Richardson reminded the federal prosecutor. The prosecutor said that the government chose to enforce the waiver because Toebbe waived her right to appeal “even on constitutional grounds.”
The three-judge panel did not rule on the case following the Sept. 19 arguments and as of deadline for Nuclear Security & Deterrence Monitor had not said when they would rule.
