A Husband-and-Wife Espionage Case: The Prosecutor’s Perspective

This last, seemingly random fact quickly became a point of focus for the media. Some outlets cracked rather easy jokes about the sandwich, with the New York Post asking, “Smooth move—or was it chunky?” Even Food & Wine magazine covered the case and wondered whether “sticky fingers” had been involved. True, some burning questions might come to mind. Why a peanut butter sandwich? And, crucially, for some, where was the jelly? But, to no one’s surprise, the prosecution of Jonathan and Diana Toebbe for espionage-related offenses involved much more serious, consequential issues. Not the least of these issues was determining how the government would achieve just, and particularized, punishment for these very serious offenses.

The persisting point of focus on this issue is whether the current US Sentencing Guidelines (the Guidelines) section applicable to such offenses is written in a way that is sufficiently helpful in achieving adequately particularized punishment.

The Facts

In April 2020, Jonathan sent a letter to a foreign government that contained a sample of classified information regarding the nuclear reactor employed on the Department of the Navy’s Virginia-class submarines and proposed to provide additional such information in exchange for monetary payment. The foreign government turned the letter over to the US government, leading to a months-long investigation in which the FBI posed as the foreign government responding to Jonathan’s proposal.

From June to October 2021, Jonathan serviced three dead drops with additional classified information, believing that he was providing the information to the foreign government. Two of these dead drops occurred in the Northern District of West Virginia and were aided by Diana acting as a lookout and a cover.

In October 2021, the investigation culminated with the Toebbes’ arrest for violations of the Atomic Energy Act of 1954, which prohibits the communication of restricted data, such as data concerning the use of special nuclear material in the production of energy, to another person with the intent to injure the United States or to secure an advantage to a foreign nation.

In November 2022, following the entry of guilty pleas, the US District Court for the Northern District of West Virginia sentenced Jonathan and Diana to prison terms of 232 months and 262 months, respectively.

In October 2023, the US. Court of Appeals for the Fourth Circuit dismissed Diana’s appeal of her sentence as barred by the appellate waiver in her plea agreement.

The Law

The statutory maximum sentence for the Toebbes’ offense is life imprisonment. But, as those of you involved in federal criminal practice know, a defendant’s sentence is more often determined by the Guidelines.

The applicable Guidelines section addresses only the base offense level, which is merely the starting point for calculating a defendant’s advisory sentencing range. Specifically, the base offense level is 42 if top secret information is involved or 37 if “otherwise.” U.S. Sent’g Guidelines Manual § 2M3.1 (U.S. Sent’g Comm’n 2021). The section does not contain any enhancements for specific offense characteristics.

For the Toebbes, the base offense level was 37 because the information was classified not top secret but confidential. Each defendant received a sentencing enhancement from elsewhere in the Guidelines, Jonathan for abusing his position of trust with the Department of the Navy and Diana for attempting to obstruct the prosecution through jailhouse letters sent or attempted to be sent to her husband to encourage implementation of the false cover story that she did not know what he was passing during the dead drops. The specific offense characteristics were left for the court to assess under the statutory sentencing factors, including the nature and circumstances of the offense, the need to reflect the seriousness of the offense, and the need to afford adequate deterrence, among others.

The Problem and Some Potential Solutions

Understandably, the Guidelines section focuses on the security classification level of the information involved because classifications are based on the degree of damage that can result from unlawful disclosure. But the section is, not so understandably, devoid of any sentencing enhancements to account for the circumstances, especially those that arise often.

Other countries have a sentencing framework that addresses specific offense characteristics in espionage cases. For example, Australia’s national security laws, as amended in 2018, include a provision for an enhanced sentence when any one of the following aggravating factors is present:

• The information belonged to a foreign intelligence agency.
• Five or more classified records were involved.
• The defendant altered a record to remove or conceal the security classification.
• At the time the defendant dealt with the information, the defendant held an Australian government security clearance allowing access to information that has a security classification of at least secret.

National Security Legislation Amendment (Espionage and Foreign Influence) Act, § 91.6 (Austl.).

In the United States, the statute provides for an enhanced penalty (death) where death results from the offense. The Guidelines account for the defendant’s lawful access to the subject information by applying an enhancement for abuse of a position of trust, thus addressing only the final factor from the Australia example. The Guidelines do not address the holder of the information, the number of classified records, or the alteration of security classification markings. If so, there would have been an enhancement in the Toebbe case for the number of classified records involved.

The Toebbe case also illustrates that the US Sentencing Commission should consider including other specific offense characteristics in this Guidelines section. First, there is often another quantitative characteristic beyond the number of classified records, namely, the number of transmissions. The greater the number of transmissions, the more opportunity the defendant had to cease the conduct and the more planning required to execute the unlawful plan, thus increasing the need for deterrence. Second, considering the sample included in the proposal letter, the conduct involved the transmission of classified information to an actual foreign government. While transmission to undercover law enforcement is serious, transmission to an actual foreign government is undeniably more serious because of the increased possibility of resulting harm. The government can argue these points in support of a sentence above the Guidelines range or in opposition to a sentence below the range, citing the statutory sentencing factors. It is also true that the Guidelines cannot account for every possible specific offense characteristic in its substantive sections. But the addition of some specific offense characteristics, here, would certainly be helpful in ensuring particularized punishment, while also obviating the need to rely too heavily on the often-amorphous statutory sentencing factors or the sometimes-controversial binding plea agreement.

In conclusion, if you ever find yourself prosecuting a husband-and-wife espionage case, check to see if the Guidelines (hopefully) have been amended to include specific offense characteristics and, if not, put your thinking cap on and try your best to apply the statutory sentencing factors to the circumstances of your case. In the end, the goal is to find a smooth road through the sentencing phase without getting into any sticky situations.