When Jonathan and Diana Toebbe arrived at the pre-arranged location to drop off nuclear secrets to a foreign power, they dressed like tourists out on a hike.
The Annapolis couple wore backpacks, and Diana Toebbe took pictures of the scenery with a camera. They had parked their car more than a mile away. When others cleared the area, Jonathan Toebbe placed a peanut butter sandwich with a SD card in a plastic bag between the bread, and Diana Toebbe gave him a distinctive head nod.
The FBI was watching the whole time and taking video, an agent testified Wednesday at a detention hearing for Diana Toebbe.
Special Agent Peter Olinits said the couple used counter-surveillance techniques to try to spot if they were being watched.
“It was good tradecraft,” he testified.
Diana Toebbe’s attorney, Edward B. MacMahon Jr., pushed back, saying that the FBI had gathered no evidence showing that she knowingly participated in the selling of secrets. He said she insists she is innocent.
“The issue for the jury is, did she know anything about it?” MacMahon said while asking a federal judge to release her pending trial. “Right now the government can only say she was on hiking trails and looked both ways. ... The government really doesn’t have much of a case against her.”
The Key School teacher and her husband, who worked on classified nuclear projects for the Navy, are being detained and pleaded not guilty to charges of espionage Wednesday after being formally indicted the day before.
Jonathan Toebbe waived his right to a detention hearing. They face life in prison.
The judge said he would take the arguments about Diana Toebbe’s possible release under advisement and issue a written ruling.
Federal authorities say that Jonathan Toebbe reached out to an undisclosed foreign country in the spring of 2020, offering to sell nuclear secrets. The country notified the FBI in December 2020, and agents began an undercover operation while pretending to be negotiating for the documents.
Toebbe said he had thousands of classified documents related to submarines, carefully smuggled out in small numbers over the course of years, according to the criminal charges. He and his wife went together to drop locations, and received payments through cryptocurrency.
The hearing for Diana Toebbe revealed new details of the investigation into the couple. The FBI’s Olinits said that during a search of their home, agents found shredded documents, their children’s passports, and $11,300 in cash — $100 bills wrapped in rubber bands. In a bag Olinits described as a “go bag,” there was a computer, a storage drive and latex gloves. Jonathan Toebbe had told undercover agents that he was prepared to flee at a moments notice.
Prosecutors said the $100,000 the FBI paid to Toebbe has not been located, nor have an additional 5,000 pages of classified documents he said he possessed. If Diana Toebbe were to be released, they argued, she could transfer money to overseas bank accounts, destroy evidence and flee the country.
“Whatever triggered her to aid and abet her husband with this very serious crime has not gone away,” Assistant U.S. Attorney Jessica Lieber Smolar said.
MacMahon, Diana Toebbe’s attorney, criticized the FBI for not wiretapping the Toebbes’ phones, or bugging their home to learn more about what the couple was discussing and planning.
“Did it ever occur to you that Mr. Toebbe told her he was up to something other than espionage against the United States?” MacMahon asked the agent.
“I think that would be a difficult sell, but maybe,” Olinits replied.
Olinits said FBI agents found chats over the encrypted app Signal in which Jonathan and Diana Toebbe discussed leaving the country. Diana Toebbe appeared to be pushing for such a move, with Jonathan Toebbe saying he was concerned about job prospects overseas, saying his engineering degree would be “worthless.”
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“You keep saying that, but I don’t see the evidence,” Diana Toebbe responded. “I cannot believe that the two of us wouldn’t be welcomed and rewarded by a foreign government.”
“In a real pinch we can flee quickly,” Jonathan Toebbe wrote in another chat.
“Let’s go sooner than later,” Diana Toebbe responded.
But MacMahon said Diana Toebbe was fervently against President Donald Trump, and wanted to leave over the prospect that he could be re-elected. MacMahon said there are no references in the chats to selling nuclear secrets.
Smolar said that Diana Toebbe’s involvement is clear. The SD card that contained the first message to the foreign country was set up in 2018, according to metadata, and that is when the Toebbes first started discussing leaving the country. In his letters to the foreign country, Jonathan Toebbe said that only one person knew of his illegal activities. “I trust that person absolutely,” he had written.
When Diana Toebbe accompanied her husband on the “dead drops” of information, he left his phone plugged in at home so it wouldn’t track his geolocation. She brought her phone but would put it on airplane mode so it was not connecting to cell towers.
MacMahon said Diana Toebbe desperately wanted to be released so she could care for their two children, and said family members would move in with her to ensure her compliance with pre-trial release conditions.