concurring:
I agree with the judgment reached by the majority and concur in Parts I and II.A.2.b.- — III of the majority opinion. While I agree with the result reached in the remainder, I disagree with my good colleagues’ interpretation of 18 U.S.C.A. § 3432 (West 2000). I would instead hold that the district court contravened the statute by allowing Donna Ward and Agent Bruning to testify, but that the error was harmless. I write separately to emphasize the correct reading of the statute, which is “too plain to be misunderstood.” Logan v. United States, 144 U.S. 263, 304, 12 S.Ct. 617, 36 L.Ed. 429 (1892), abrogated on other grounds by Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
Section 3432 provides in full:
A person charged with treason or other capital offense shall at least three entire days before commencement of trial be furnished with a copy of the indictment and a list of the veniremen, and of the witnesses to be produced on the trial for proving the indictment, stating the place of abode of each veniremen and witness, except that such list of the veniremen *439and witnesses need not be furnished if the court finds by a preponderance of the evidence that providing the list may jeopardize the life or safety of any person.
18 U.S.C.A. § 3432.1 The majority holds that this section is not violated when the prosecution calls to the stand a newly discovered witness if “the prosecution has demonstrated that its failure to include the witness on the list was in good faith and not the result of a lack of diligent investigation” and the defendant cannot demonstrate actual prejudice. Ante at 424. This exception is not found in the text of the statute and is an entirely judge-made creation.2
The only exception to the statute’s absolute rule that a listing of “the witnesses ... for proving the indictment” shall be provided three days prior to trial is where production of “the list may jeopardize the life or safety of any person.” 18 U.S.C.A. § 3432. Thus, the plain language of the statute makes no exception for good faith or due diligence on the part of the Government. Indeed, the statute “is ... mandatory to the [Government; and its purpose is to inform the defendant of the testimony which he will have to meet, and to enable him to prepare his defense.” Logan, 144 U.S. at 304, 12 S.Ct. 617. Thus, according to Logan, Congress’s concern in passing the statute was with allowing defendants facing possible sentences of death sufficiently to prepare their defense, regardless of whether the statute precluded the Government from introducing some relevant testimony.
In this case, the Government provided a list of most of the witnesses it ultimately produced for proving the indictment in ample time under the statute. The statute, however, requires that the defendant be provided with a list “of the witnesses to be produced on the trial for proving the *440indictment.” 18 U.S.C.A. § 3432 (emphasis added). Thus, the statute is no more “silent” on the question of after-discovered witnesses that are offered to prove the indictment, as the majority concludes, ante at 422, than it is “silent” on the question of prior-discovered witnesses that are offered to prove the indictment. It speaks only of the witnesses, and by using the definite article “the” without relevant exception, the statute’s plain language calls for a list of each and every witness to be produced at trial “for proving the indictment,” id., not “the witnesses for proving the indictment that to date have been discovered.”
The statute is unmistakingly clear that if the Government is to call a witness for the purpose of proving the indictment, the name of that witness must be provided to the capital defendant at least three entire days prior to commencement of trial unless providing the name would jeopardize personal safety. Cf. Goldsby v. United States, 160 U.S. 70, 76, 16 S.Ct. 216, 40 L.Ed. 343 (1895) (allowing an undisclosed rebuttal witness to testify because the statute’s combination of the phrase “the witnesses” with the phrase “for proving the indictment” clearly refer[s] to the witnesses relied upon the by prosecution to establish the charge [and does] not extend to such witnesses as may be rendered necessary for rebuttal purposes.” (emphasis added)). Unless the result reached from following Congress’s plain language is absurd (which surely it is not), I think it best for the Court to “interpret[ ] § 3432 ‘literally’,” ante at 423 n. 6, especially when that literal interpretation is plainly in harmony with what the Supreme Court has explained is the purpose of the statute — to allow a capital defendant to prepare his defense. Logan, 144 U.S. at 304, 12 S.Ct. 617.
Aside from the plain language, Congress’s relatively recent willingness to amend this statute with an explicit exception further counsels against reading judge-made exceptions into the statute. In 1994, Congress added the exception to the statute’s mandatory directive for when production of “the list [of witnesses and veniremen] may jeopardize the life or safety of any person.” Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, Tit. VI, § 60025, 108 Stat. 1982 (1994). The fact that a recent Congress was willing to amend § 3432 with this exception should allay fears that Congress will fail to act in the future if it — like most of the Article III courts that have considered the question — concludes that application of the plain meaning of the statute “would unnecessarily subvert the truth-seeking function of criminal proceedings.” Ante at 423. Moreover, when “Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.” United States v. Smith, 499 U.S. 160, 167, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991) (emphasis added and internal quotation marks omitted).
Finally, I note that I share the majority’s instinct that the exception it recognizes is grounded in sound judgment and makes perfect sense as a policy matter. Nonetheless, I believe it is Congress’s place — not ours — to make policy and if it so chooses, to amend the statute, as it has shown a willingness to do as recently as 1994. See Sigmon Coal Co., Inc. v. Apfel, 226 F.3d 291, 308 (4th Cir.2000), aff'd, 534 U.S. 438, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (“[E]ven if ... the literal text of the statute produces a result that is, arguably, somewhat anomalous — we are not simply free to ignore unambiguous language because we can imagine a preferable version.”). I also note that even under the *441plain meaning of § 3432, the Government is not without any recourse because it often will be able to present the after-discovered witness as a rebuttal witness, as the Government contends it could have done in this case. (See Appellee’s Br. at 55 (arguing that Ward and Bruning “would have made not only appropriate, but also devastating, rebuttal witnesses”)).
In short, I would hold that the district court erred in allowing the two witnesses that were not included on the witness list to testify during the prosecution’s case-in-chief. Nonetheless, I would find the error harmless after undertaking a traditional Rule 52(a) harmlessness analysis in order “to determine whether the error was prejudicial.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). I believe that the Government, as evidenced by the majority’s persuasive discussion of lack of prejudice in Part II. A.2.b., has met its burden of proving harmlessness. Accordingly, I concur in the judgment reached by the majority.
. I assume without deciding (as neither party raises the issue) that the statute applies equally to the underlying guilt trial as well as the "separate sentencing hearing to determine the punishment to be imposed.” 18 U.S.C.A. § 3593 (West 2000).
. I concede, and the majority notes, that the weight of authority is in favor of recognizing a judge-created good faith exception. I note, however, that the reasoning behind this authority is not grounded on the text of the statute, but instead on one faulty 1893 opinion from the Supreme Court of the District of Columbia. In United States v. Schneider, 1893 WL 11435 (D.C. Jan. 9, 1893), the court noted that "the statute never was intended to preclude the [Government] from making use of any material testimony discovered during the progress of the trial.” Id. at *20. For this proposition, the court did not cite a single source or refer to the text of the statute. Rather, it merely offered its view as its "opinion.” Id.
More troubling, in offering this opinion, the Schneider court ignored (without even recognizing) the holding of United States v. Never-son, 1880 WL 18716 (D.C. June 7, 1880). In Neverson, the same court held that the statute is violated when notice of a witness is not "given until after the trial beg[ins].” Id. at *13. But see id. at *20 (MacArthur, J., concurring) (disagreeing and arguing that the statute should not apply when the Government "us[es] the utmost diligence and exer-cis[es] the utmost good faith”). Schneider also ignored the Supreme Court’s language in Logan v. United States, 144 U.S. 263, 304, 12 S.Ct. 617, 36 L.Ed. 429 (1892), abrogated on other grounds by Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), which recognized that the statute was "mandatory” and "its purpose is to inform the defendant of the testimony which he will have to meet, and to enable him to prepare his defense.” Id.
To compound matters, both circuit courts that have (before today) since recognized the judge-created exceptions (either as alternative holdings or dicta) have primarily relied on Schneider’s unsupported language. See United States v. Greene, 497 F.2d 1068, 1082 (7th Cir.1974) (quoting Schneider’s language); United States v. Rosenberg, 195 F.2d 583, 599-600 (2d Cir.1952) (same).