Washington - A federal judge in West Virginia ordered the wife of a Navy submarine engineer accused of trying to sell confidential data to a foreign nation detained until her trial, rejecting her lawyers' arguments for her release.
Diana Toebbe, who on Wednesday pleaded not guilty to one count of conspiracy to communicate restricted data and two counts of communication of restricted data, asked Magistrate Judge Robert Trumble to release her to her family's home in Annapolis, Maryland to care for her two children until her trial. Her husband, Jonathan Toebbe, acceded to the government's request to remain detained pending trial.
"He understands he remains incarcerated," his court-appointed lawyer, Nicholas Compton, told the judge.
Prosecutors allege Jonathan Toebbe sent a package containing restricted data about naval nuclear technology to an unnamed foreign government in April. He had access to the data through his Pentagon-issued national security clearance.
He stands accused of corresponding with a person he believed to be an agent of another country, but who was in fact an undercover FBI agent. The Navy engineer allegedly agreed to sell restricted data to the undercover agent for tens of thousands of dollars in cryptocurrency.
The government had asked that both Jonathan and Diana Toebbe be jailed before trial.
But in what became an hourslong legal battle, Diana Toebbe took a different approach than her husband, fighting the government's request and arguing for her release.
The government relied on 25 exhibits Wednesday — including multiple video and photo presentations that purportedly showed the Toebbes in the act of leaving the secret information for a source — to show the court that Jonathan Toebbe, accompanied by his wife, went to West Virginia and placed a memory card inside half of a peanut butter sandwich. Diana Toebbe, prosecutors said, served as a lookout for her husband.
"Diana was right behind him…basically keeping a lookout," FBI special agent Peter Olinits said in court.
According to prosecutors, the card contained restricted data about submarine nuclear reactors.
Jonathan Toebbe carried out three more "dead drops," including leaving memory cards inside a sealed bandaid wrapper and a chewing gum package.
In all, Diana Toebbe is accused of participating in three out of the four data drops.
To make the case that Diana Toebbe is also culpable and must remain behind bars until her trial, the government presented another alleged encrypted communication between Jonathan Toebbe and the individual he thought was a foreign agent, in which Jonathan said, "There is only one other person with knowledge" of their arrangement. That person, the government alleged, was Diana Toebbe.
However, Diana's defense attorney, Edward MacMahon, fired back in a forceful cross examination of the FBI special agent. "You just assume she was a coconspirator," he said, arguing that the government had no proof of her involvement.
"She never received training" in any type of counterintelligence, MacMahon said of his client. "She's just a schoolteacher." The defense also continually asked the government's witness why the FBI hadn't asked to bug the Toebbes' home or car, asserting they lacked evidence that Diana Toebbe knew what her husband had planned.
Both Diana and Jonathan are scheduled to stand trial in West Virginia in December.
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