A woman who aided her husband’s attempt to sell nuclear-submarine secrets cannot appeal her conviction because she traded her right to appeal for a lighter sentence, the federal government said in court papers this week.
While Diana Toebbe’s motive for appealing November’s verdict was not known as of Thursday — she had not yet filed an appeals brief — the convicted conspiracist may plan to appeal the length of her 21-plus-year sentence, Justice Department attorneys wrote in a Wednesday motion to dismiss.
But legally, Toebbe cannot do that, the department said.
Toebbe twice agreed to plea agreements — the trial judge threw out the first one for being too lenient — under which she waived her right to appeal “on any grounds whatsoever,” unless her trial lawyers were ineffective or there was prosecutorial misconduct.
The government has been in contact with Toebbe’s attorneys and “based on previous correspondence with appellate counsel, the government expects the appeal to challenge only the sentence imposed,” U.S. attorneys told the U.S. Court of Appeals for the Fourth Circuit.
Still, Toebbe’s attorneys, Barry Beck of Martinsburg, Va., and Jessica Carmichael of Alexandria, Va., oppose the government’s motion to dismiss the appeal and planned to file a response. The Fourth Circuit has ordered Toebbe’s camp to respond by Jan. 30, the docket shows.
Toebbe, 46, gave notice on Nov. 29 that she would appeal to the U.S. Court of Appeals for the Fourth Circuit in November. That was less than a month after the U.S. District Court for the Northern District of West Virginia, Martinsburg, sentenced her to more than 21 years in prison for her role in a conspiracy to sell stolen technical data about Virginia-class submarines.
Jonathan Toebbe, Diana’s husband, drew a sentence about two years shorter, even though it was he who actually stole the Virginia-class data from the Navy during his time at the service’s Reactor Engineering Division and the Bettis Atomic Power Laboratory in West Mifflin, Pa.
Each of those sentences was at the lower end of the sentencing guidelines for the crimes to which the Toebbes, under separate agreements with the federal government, pleaded guilty.
The FBI arrested the Toebbes in 2020 after a scheme that began in 2018, in which the couple attempted to sell technical data about Virginia-class submarines to people they thought were agents of a foreign nation but were really agents of the bureau.
