FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]
Ezekiel L. Hill, with whom David J. Apfel, Kathleen
McGuinness, and Goodwin Procter LLP were on brief, for
appellant Michael Cowels.
M. Weinstein on brief for appellant Michael Mims.
Annapurna Balakrishna, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief,
Thompson, Lipez, and Barron, Circuit Judges.
Michael Cowels and Michael Mims were convicted of murder in
state court and spent twenty years behind bars serving life
sentences. After new testing of trial evidence cast doubt on
the verdict, they were granted a new trial. Subsequent DNA
testing of a swab taken from the inside of a condom recovered
in the vicinity of the victim during the initial
investigation revealed an unknown male DNA profile. Cowels
and Mims obtained a state court order requiring Massachusetts
to upload the DNA profile into a state database of DNA
records for comparison purposes. No matches were found. The
FBI, however, refused to upload the profile into the national
DNA database after determining that it was ineligible for
upload. Cowels and Mims went to federal court to compel the
FBI to upload the profile, but the district court dismissed
their suit based on its conclusion that the FBI's
eligibility determination is unreviewable.
suggesting that the district court erred in its analysis, we
assume that the FBI's eligibility determination is
reviewable. Having done so, we conclude that the
determination was not arbitrary and capricious. We therefore
affirm the dismissal of appellants' suit.
Identification Act of 1994 authorized the FBI Director to
establish a DNA index, including DNA identification records
of persons charged or convicted of crimes and "analyses
of DNA samples recovered from crime scenes," 34 U.S.C.
§ 12592(a)(1)-(2), "to facilitate law enforcement
exchange of DNA identification information,"
id. § 12592 (title). Pursuant to this
authority, the FBI Director created the Combined DNA Index
System ("CODIS"), which operates at the local,
state, and national levels. The State DNA Index System
("SDIS") is managed by participating states, and
the National DNA Index System ("NDIS"), which
aggregates all the DNA records contained in the state
databases, is managed by the FBI. See generally Boroian v.
Mueller, 616 F.3d 60, 63 (1st Cir. 2010) (describing
Identification Act itself lays out certain minimum standards
for determining whether a DNA record may be uploaded to the
CODIS system. For example, DNA records may only be uploaded
if the underlying analysis was performed by an accredited
laboratory in accordance with quality assurance standards
established by the FBI. 34 U.S.C. §
12592(b)(1)-(2)(A)(i). The FBI's NDIS Operational
Procedures Manual ("the Manual") provides
additional guidelines for determining whether DNA records are
eligible for inclusion in the NDIS. Of relevance to this
appeal, pursuant to the Manual, a DNA record that
"originate[s] from and/or [is] associated with a crime
scene" is eligible for upload if it is "believed to
be attributable to the putative
1994, a Massachusetts jury convicted Cowels and Mims of
murdering Belinda Miscioscia, who was found brutally stabbed
to death behind a woodworking shop in a yard known as a
location for sexual trysts. Among the evidence presented at
trial were two bloody towels recovered from the home of a
friend of Cowels and Mims, which bolstered the friend's
testimony that Cowels and Mims came to his home the night of
the murder, made incriminating statements, and cleaned up in
his bathroom. Analysis of the only towel with a large enough
amount of blood for testing neither identified nor excluded
the men or the victim as sources. At trial, a state forensic
scientist also testified about collecting "an older,
wrinkled condom . . . covered with dirt and debris as well as
sawdust" from the vicinity of the body. ...