                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-1749
                                    ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the
Miguel Suarez-Perez,                    * District of Nebraska.
                                        *
             Appellant.                 *
                                    __________

                              Submitted: October 16, 2006
                                 Filed: April 18, 2007
                                  ___________

Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

       Defendant Miguel Suarez-Perez (Suarez-Perez) was charged with one count of
possession with intent to distribute 500 grams or more of a methamphetamine mixture,
in violation of 21 U.S.C. § 841(a)(1) and (b)(1). Approximately eleven months after
his arraignment, Suarez-Perez filed a motion to dismiss alleging Speedy Trial Act
violations. The district court denied his motion. Thereafter, Suarez-Perez
conditionally pled guilty, and the district court sentenced Suarez-Perez to 120 months’
imprisonment.
       Suarez-Perez appeals the district court’s denial of his Speedy Trial Act motion
to dismiss. For the reasons stated below, we reverse the district court’s denial of the
motion to dismiss, vacate Suarez-Perez’s sentence, and remand the case to the district
court for dismissal of Suarez-Perez’s indictment. On remand, the district court must
determine, taking into account the factors specified in 18 U.S.C. § 3162(a)(2), whether
the dismissal should be with or without prejudice.

I.     BACKGROUND
       On January 28, 2004, in Omaha, Nebraska, a Douglas County deputy sheriff
stopped a car driven by Suarez-Perez for a traffic violation. After conducting a
routine check of Suarez-Perez’s driver’s license and registration, the deputy sheriff
asked for and received permission to search Suarez-Perez’s vehicle. While
conducting the search, the deputy sheriff discovered methamphetamine and arrested
Suarez-Perez. Suarez-Perez was charged with possession of methamphetamine with
intent to distribute.

      The following is a chronology of the relevant district court docket entries
leading to Suarez-Perez’s sentencing, together with an accounting of Suarez-Perez’s
speedy trial clock:




                                         -2-
       Date                                  Action                              Speedy Trial Days
 June 9, 2004     Arraignment held; pretrial order entered setting motions                         0
                  deadline for June 29, 2004,1 and setting trial for August 2,
                  2004. Speedy trial clock began to run on June 10, 2004.
 July 6, 2004     District court reset trial for August 3, 2004.                 June 10-July 5   26
 July 15, 2004    District court reset trial for August 10, 2004.                July 7-July 14    8
 August 6, 2004   Suarez-Perez, citing newly discovered evidence, filed a        July 16-         21
                  motion to continue.2                                           August 5
 August 9, 2004   District court granted motion to continue and excluded time                      0
                  from August 6, 2004 to September 13, 2004 from speedy
                  trial clock.



       1
       We note the Seventh Circuit, in United States v. Montoya, 827 F.2d 143, 153
(7th Cir. 1987), stated a sua sponte routine scheduling order setting a deadline for
filing pretrial motions results in excludable time under the Speedy Trial Act.
However, other circuits like the Eleventh, in United States v. Williams, 197 F.3d
1091, 1095 n. 7 (11th Cir. 1999), the Sixth, in United States v. Moran, 998 F.2d 1368,
1370-71 (6th Cir. 1993), and the Ninth, in United States v. Hoslett, 998 F.2d 648, 656
(9th Cir. 1993), have refused to follow Montoya, instead holding a sua sponte routine
scheduling order setting a deadline for filing pretrial motions does not result in
excludable time. Because the parties and the district court did not raise this issue and
have assumed the district court’s routine order setting a deadline for filing pretrial
motions does not result in excludable time, we will not address this issue.
       2
        We also recognize there is a circuit split on the issue of whether the time
requested for preparing pretrial motions is excluded from the speedy trial clock. Some
circuits have said the time for preparing pretrial motions is excluded if the defendant
requested such time. See United States v. Lewis, 980 F.2d 555, 564 (9th Cir. 1992);
United States v. Wilson, 835 F.2d 1440, 1444-45 (D.C. Cir. 1987); United States v.
Tibboel, 753 F.2d 608, 610 (7th Cir. 1985); United States v. Jodoin, 672 F.2d 232,
238 (1st Cir. 1982). However, the Sixth Circuit has stated, “The statute does not
provide that a period allowed by the district court for preparation of pretrial motions
is to be excluded from the seventy-day computations.” Moran, 998 F.2d at 1371.
Because the parties and the district court did not raise this issue and have assumed the
time for preparing a pretrial motion is excluded from the speedy trial clock where (as
here) the defendant requests such time, we follow the parties’ and district court’s
calculation and do not decide this issue.

                                                -3-
 August 17, 2004     Suarez-Perez filed motion to suppress. After evidentiary                       0
                     hearing and receipt of transcript, matter was fully submitted
                     to the court on November 7, 2004.
 December 7, 2004    Magistrate judge filed Report and Recommendation (R&R)                         0
                     denying motion to suppress. No objections filed.
 January 18, 2005    District court judge adopted R&R. Speedy trial clock            January 7-    11
                     restarted January 7, 2005–30 days after R&R was filed (18       January 17
                     U.S.C. § 3161(h)(1)(J)).3
 January 20, 2005    District court entered nunc pro tunc order amending order of January 19        1
                     August 9, 2004, changing time period excluded from speedy
                     trial clock to June 29, 2004 through September 13, 2004
                     (rather than August 6, 2004 through September 13, 2004).
 February 3, 2005    Defense counsel moved to withdraw.                              January 21-   13
                                                                                     February 2
 February 10, 2005   Evidentiary hearing held; motion to withdraw granted.                          0
                     District court tolled speedy trial clock from February 10,
                     2005 to March 3, 2005.
 March 8, 2005       New counsel appointed on February 15, 2005. District court March 4-            4
                     reset trial for March 29, 2005.                            March 7
 March 10, 2005      Change of plea hearing set for March 25, 2005. District         March 9        1
                     court tolled speedy trial clock from March 10, 2005 to
                     March 25, 2005.
                                                         Days Elapsed on Speedy Trial Clock:       854


       3
       The parties have 10 days to file objections to an R&R, and the speedy trial
clock may not start for 40 days, rather than 30 days. See United States v. Long, 900
F.2d 1270, 1275 (8th Cir. 1990) (not counting the 10 days where R&R objections
were made and tolling the speedy trial clock for 40 days). No objections to the R&R
were filed here. The parties have not raised this 10-day tolling issue and have
assumed 30 days is the correct tolling number. We do not decide this tolling issue,
where no R&R objections are filed, because whether 75 or 85 days elapsed, the
Speedy Trial Act requires dismissal. See United States v. Thomas, 788 F.2d 1250,
1257-58 (7th Cir. 1986) (analyzing the 10 day tolling issue and concluding “[t]here
is no need of a further enlargement past 30 days”); but see United States v. Jenkins,
92 F.3d 430, 439 (6th Cir. 1996) (reaching opposite result without analysis).
       4
        Suarez-Perez disputes whether the dates the district court entered its
Memorandum and Order adopting the magistrate judge’s R&R, orders setting trial
dates, and the nunc pro tunc order constitute “other proceedings” under § 3161(h)(1)

                                                  -4-
      Suarez-Perez filed several pretrial motions, including motions to continue, to
cancel the plea hearing, to request a new change of plea hearing, and on May 7, 2005,
to dismiss based on Speedy Trial Act violations.5 The district court denied Suarez-
Perez’s motion to dismiss. On March 8, 2006, reserving the right to appeal the district
court’s denial of his Speedy Trial Act motion to dismiss, Suarez-Perez conditionally
pled guilty to possession with intent to distribute methamphetamine and was
sentenced to 120 months’ imprisonment. This appeal followed.

II.   DISCUSSION
      Suarez-Perez argues, inter alia, the district court erred in denying his motion to
dismiss, because the January 20, 2005, nunc pro tunc order violated the Speedy Trial
Act. We agree.

       In the context of the Speedy Trial Act, we review the district court’s findings
of fact for clear error and its legal conclusions de novo. United States v. Titlbach, 339
F.3d 692, 698 (8th Cir. 2003) (quotation marks and citation omitted). Under the
Speedy Trial Act, a defendant must be brought to trial within 70 days of his
indictment or first appearance, whichever is later. Id.; see 18 U.S.C. § 3161(c)(1).
However, the Act permits the district court to exclude delays when it finds “the ends
of justice . . . outweigh the best interest of the public and the defendant in a speedy
trial.” 18 U.S.C. § 3161(h)(8)(A). If a defendant is not brought to trial within the
time limit required by 18 U.S.C. § 3161(c) as extended by the excludable delays of
§ 3161(h), the information or indictment shall be dismissed on motion of the
defendant. Id. § 3162(a)(2).


of the Speedy Trial Act, and whether they should be excluded from the speedy trial
clock calculations. However, our computations show, without taking these dates into
account, the speedy trial clock is well over the 70-day mark set by the Speedy Trial
Act; thus, we do not address those issues.
      5
        Because our computations reflect more than 70 days had elapsed on the speedy
trial clock as of March 10, 2005, we do not decide the impact of any subsequent
motions to Suarez-Perez’s speedy trial clock calculations.

                                          -5-
       The government asserts the magistrate judge entered the January 20, 2005, nunc
pro tunc order to correct an error in his August 9, 2004, order granting Suarez-Perez’s
motion to continue. The government contends the original order incorrectly tolled the
speedy trial clock from August 6, 2004 (the date Suarez-Perez filed the motion to
continue) to September 13, 2004, when instead the speedy trial clock should have
been tolled from June 29, 2004 to September 13, 2004. The government provides no
legal or factual basis for retroactively tolling the speedy trial clock 38 days before
Suarez-Perez filed his motion to continue the trial.6

        The function of a nunc pro tunc order is to correct clerical or ministerial errors,
including typographical errors, or to reduce an oral or written opinion to judgment;
the function is not to make substantive changes affecting a party’s rights. See
Transamerica Ins. Co. v. South, 975 F.2d 321, 325-26 (7th Cir. 1992). The Latin
phrase nunc pro tunc, which means now for then, “is merely descriptive of the
inherent power of the court to make its records speak the truth–to record that which
was actually done, but omitted to be recorded. It is no warrant for the entry of an
order to record that which was omitted to be done.” W.F. Sebel Co. v. Hessee, 214
F.2d 459, 462 (10th Cir. 1954); see also Melon v. St. Louis Union Trust Co., 240 F.
359 (8th Cir. 1917) (citing Hickman v. Fort Scott, 141 U.S. 415, 418 (1891)). In other
words, using a nunc pro tunc order “[a] judge may correct a clerical error at any time.
. . . But he may not rewrite history.” United States v. Daniels, 902 F.2d 1238, 1240
(7th Cir. 1990). The January 20, 2005 order is not cloaked in language correcting a
clerical error; its effect is to rewrite history and substantially change Suarez-Perez’s
Speedy Trial Act rights.

      To toll the speedy trial clock for the ends of justice, the district court’s ruling
and the record clearly must reflect adequate grounds for the tolling. See Zedner v.
United States, __ U.S. __, 126 S. Ct. 1976, 1989-90 (2006) (concluding “if a judge

      6
      A defendant may not prospectively waive application of the Speedy Trial Act.
See Zedner v. United States, __ U.S __, 126 S. Ct. 1976, 1985-88 (2006).
                                        -6-
fails to make the requisite findings regarding the need for an ends-of-justice
continuance, the delay resulting from the continuance must be counted, and if as a
result the trial does not begin on time, the indictment . . . must be dismissed”). The
district court’s justifications to begin tolling the speedy trial clock on June 29, 2004,
rather than on August 6, 2004, are indeterminate, because nothing occurred during that
period to toll the speedy trial clock. The district court’s July 6, 2004, order expressly
noted: “This case is currently pending on the docket of [the district court judge]. No
substantive motions were filed and time is running under the Speedy Trial Act.” Only
two additional entries appear on the docket after this order and before August 6, 2004:
(1) a standard order dated July 14, 2004, setting the rules for trial; and (2) an order
dated July 15, 2004, moving the trial from August 3, 2004 to August 10, 2004.
Neither entry affected the speedy trial clock.

       The nunc pro tunc order states it was necessary to exclude the period of time
from June 29, 2004 to September 13, 2004, because “[Suarez-Perez’s] counsel
require[d] additional time to adequately prepare the case.” However, (1) this rationale
does not correct a clerical error; (2) nothing was pending on June 29, 2004; and (3)
the record does not show Suarez-Perez’s counsel requested additional time to prepare
for trial. At the time, Suarez-Perez did not know about the new evidence that
eventually prompted the filings of his motions to continue and suppress. The January
20, 2005, nunc pro tunc order fails to declare the requisite findings to support an ends
of justice continuance, and no factual basis exists to exclude the thirty-eight day
period of June 29, 2004 to August 6, 2004, from the speedy trial clock.

       Absent exceptional circumstances, the district court should not enter an “ends
of justice” continuance after the period sought to be excluded begins to run. See
United States v. Brenna, 878 F.2d 117, 122 (3d Cir. 1989) (per curiam) (holding an
ends of justice continuance “cannot be entered nunc pro tunc . . . . The order
continuing the case must be entered before the days to be excluded”). The Speedy
Trial Act does not provide for retroactive continuances. See United States v. Janik,
723 F.2d 537, 545 (7th Cir. 1983) (holding a “continuance itself must be granted
before the period sought to be excluded begins to run. Since the Act does not provide
                                         -7-
for retroactive continuances a judge could not grant an ‘ends of justice’ continuance
nunc pro tunc . . .” (internal quotation and citation omitted)). In Suarez-Perez’s case,
the purpose of the district court’s nunc pro tunc order undermines the strict limits of
the Speedy Trial Act. Over 70 days elapsed on Suarez-Perez’s speedy trial clock.
Therefore, the case must be remanded for dismissal of the indictment.7 Zedner, __
U.S. at __, 126 S. Ct. at 1990.

III.   CONCLUSION
       For the reasons stated, we reverse the district court’s order denying Suarez-
Perez’s Speedy Trial Act motion to dismiss and vacate Suarez-Perez’s sentence. The
case is remanded to the district court for a dismissal of Suarez-Perez’s indictment. On
remand, it is for the district court, in the first instance, to determine whether dismissal
should be with or without prejudice, taking into account the factors specified in
§ 3162(a)(2). See 18 U.S.C. § 3161(d)(1); United States v. Giambrone, 920 F.2d 176,
179-80 (2d Cir. 1990); see also 18 U.S.C. § 3288; Zedner, __ U.S. at __, 126 S. Ct.
at 1984-85, 1990.
                           ______________________________




       7
       Having made this determination, we need not address the other issues Suarez-
Perez raised on appeal, namely, whether the nunc pro tunc order violated his due
process and ex post facto rights.
                                       -8-
