The married couple who tried to sell nuclear secrets is taking different defense strategies, with the husband not fighting being kept behind bars ahead of the trial while the wife contends she had no idea what he was up to and wants to be freed from jail.
Jonathan Toebbe, a nuclear engineer at the Navy’s Nuclear Propulsion Program, and his wife, Diana, have been accused of espionage-related charges following alleged efforts to sell nuclear submarine secrets to an unnamed foreign government in exchange for tens of thousands of dollars in cryptocurrency. The two appeared separately before Magistrate Judge Robert Trumble of West Virginia on Wednesday.
Prosecutors say Diana, a history and English teacher at the Key School in Annapolis, helped him in his scheme, as they passed information to undercover FBI agents in SD cards hidden in a peanut butter sandwich, a Band-Aid, and a gum package.
The arraignment and detention hearing for Jonathan lasted only a few minutes. He pleaded “not guilty” to the charges, each of which could land him up to life in prison. His lawyer, Nicholas Compton, told the judge he understood it meant he will remain behind bars unless he is granted bond. The judge scheduled jury selection to begin on Dec. 14.
The hearing for his wife, Diana, however, lasted roughly two and a half hours, as Jessica Smolar of the U.S. Attorney’s Office in Pittsburgh called a lead FBI special agent and pretrial officer to argue that she should be kept in jail ahead of the trial, while Diana’s defense lawyer, Edward MacMahon, said she wanted to prove her innocence and should be allowed to return to her Maryland home to take care of her two children ahead of the trial.
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The formal indictment against the Toebbes was released Tuesday, charging them with one count of “conspiracy to communicate restricted data” and two counts of “communication of restricted data.”
FBI special agent Peter Olinits said Diana accompanied her husband on three of his four dead drops, missing one because she’d had ankle surgery. Olinits said that during the first dead drop in June, the duo parked in a visitor’s parking lot more than a mile away before walking to the spot, which he called “indicative” of “espionage tradecraft.” He asserted that the husband and wife “conducted many SDRs [surveillance detection routes] throughout this investigation.” The FBI agent said they were “posing as tourists” and that Diana took pictures as the pair waited until no one else was around. Olinits said that “as the dead drop was serviced by Jonathan, Diana was right behind him … basically keeping a lookout.” He added: “The drop was completed fairly quickly, which is very good tradecraft.”
The FBI said the couple used a similar pattern in other dead drops, driving out together with Jonathan’s phone left behind in their Maryland home, which the bureau agent said was likely a surveillance evasion technique, while Diana’s phone was in airplane mode in the car.
Diana accompanied him on a July dead drop, as well as one in October, but was not there for the one in August. Olinits said at that dead drop “Jonathan was extremely nervous … because Diana was not there to act as a lookout.” It was during that dead drop that Jonathan communicated that “we have passports and cash set aside” to flee the country and “there is only one other person” who knew about the plan.
When the FBI searched the Toebbes’ home this month, it allegedly found Jonathan’s phone plugged in and on in their bedroom, along with a cardboard box containing $11,300 in cash, passports for their two children, and the location of a crypto wallet. In a “go bag” in the bedroom was a Mac computer. In the laundry room was a trash bag full of shredded documents. The FBI said it also discovered that Jonathan and Diana had sent their passports to be renewed in an expedited fashion in September. Olinits said that there was a sufficient balance in their bank account to leave the United States, and he repeatedly suggested that may have been their intention.
The FBI didn’t find the $100,000 in cryptocurrency that they had given the couple to gain their trust, hadn’t gained access to the ProtonMail accounts, and didn’t find the extra 50 packets that Jonathan had been offering for $5 million total. The bureau agent admitted that “how he was getting those documents out of the Navy is yet to be determined.” Olinits said the metadata suggested the information Toebbe tried to sell seemed to have been stolen in 2018 or earlier.
A search found that the husband and wife both also had encrypted Signal and Telegram accounts. Among those messages, Diana allegedly said, “I can’t believe that the two of us wouldn’t be welcomed and rewarded by a foreign government,” with Jonathan saying that nuclear is “just as dead in Europe as here.” Diana said in early November 2020: “I think we need to be actively making plans to leave the country.”
The FBI agent said he thought Diana should be detained, arguing: “She could further hide the $100,000. She could use that money to flee the country … She could destroy any cloud accounts … She could potentially sell this to other buyers.”
The defense lawyer argued the FBI did not have evidence that Diana knew the specifics of Jonathan’s alleged scheme and said, “She’s not the only liberal who has wanted to leave the country over politics, is she?”
The FBI agent conceded that the bureau had not used wiretaps or planted listening devices in the home or car and said there were no recordings of what Jonathan told Diana. Olinits said they have a large amount of digital evidence to review.
MacMahon also asserted their “SDR was terrible” because “they fell right into your trap.”
The defense attorney argued the couple’s children needed their mother, and the FBI agent replied: “I know that if [the kids] wanted to get in touch with her when she was committing an espionage operation, she shouldn’t have had her phone off that day.”
In arguing to keep Diana behind bars, Smolar pointed to the use of encrypted apps, acting as a lookout for Jonathan, discussions about leaving the country on multiple occasions as far back as 2018, the money and documents still not being located, and her worry that access to internet could allow her to obstruct justice.
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MacMahon countered that Diana was “entitled to bail” under the law, arguing she “has a very substantial defense in this case.” He said there was “no evidence at all” against Diana and that her involvement in the conspiracy is “purely speculative.” And so he asked for a small bond, arguing she’s not going to flee the country and leave her children behind, the internet can be blocked at her house, and that she “wants to clear her name.”
