Feds file new murder charge after defendant freed

Twice in the past 11 years, Anthony “Smiley” Gallegos was arrested for the gruesome murder of a 28-year-old Los Lunas man. And twice he was set free after the charges were dismissed.

Last month, federal prosecutors revived the murder prosecution once again with an indictment alleging Gallegos violated federal law by fatally shooting Adrian Burns during a robbery in 2012. A conviction could send Gallegos to prison for life.

He’s been there before. In fact, he had served about seven years of a life sentence in federal prison after being convicted in 2018 of helping to kill Burns as part of a criminal enterprise of the ultra-violent Syndicato de Nuevo Mexico prison gang. That conviction was overturned on appeal earlier this year.

Federal authorities say there’s no double-jeopardy issue in pursuing the new case.

“Gallegos is charged with a different federal crime that has different elements,” a spokeswoman for the U.S. Attorney’s Office in New Mexico said .

Gallegos hasn’t yet been set for an initial appearance in federal court on the new charge, which omits mention of the SNM. Court records don’t identify his defense attorney.

In 2018, a federal jury in Las Cruces convicted Gallegos, 48, and his older brother, Joe Gallegos, 54, of killing Burns, who was discovered shot in the head, handcuffed and burned south of Belen. Burns was described in court records as a small-scale drug dealer who sold the brothers heroin for their personal use.

The two brothers had initially been arrested weeks after the 2012 slaying and charged with murder, kidnapping, arson and evidence tampering. But a Socorro magistrate dismissed the charges citing insufficient evidence, and the men went free.

Their prosecution by federal authorities four years later came as part of a massive FBI investigation of the criminal activity of the SNM prison gang. The FBI focused in part on solving cold-case homicides linked to the gang, which formed after the deadly 1980 prison riot at the Penitentiary of Santa Fe.

Prosecutors originally contended Burns was fatally shot as part of an SNM gang enterprise to gain entrance to or increase or maintain the brothers’ standing with the gang.

The night of his death, Burns wanted Joe Gallegos to pay a drug debt and went to his house, the trial testimony showed. The car he used was found on fire hours later, with his body about 10 feet away and a plastic bag covering his head. Prosecutors argued that the older Gallegos, as an SNM member, felt disrespected by Burns and killed him, with the help of Andrew Gallegos.

During the 2018 trial, a prosecution witness testified that Andrew Gallegos told him in 2015, “Look at us. We got charged for Adrian Burns and were released a few months later. ... Even though we did it, we got off.”

Both brothers were sentenced to life in prison, along with 10 other SNM-affiliated defendants prosecuted under the violent crime racketeering laws since 2018.

But Andrew Gallegos won his freedom earlier this year after the 10th Circuit Court of Appeals concluded there was insufficient evidence to link the slaying to the SNM. Joe Gallegos is still incarcerated for his role in a 2001 SNM-ordered murder.

“To be clear,” the appeals court ruling added, “the Government offered sufficient evidence from which a reasonable jury could find beyond a reasonable doubt that Andrew Gallegos and Joe Gallegos murdered Mr. Burns.”

About six months after his release, Andrew Gallegos was arrested on charges of killing a Belen resident during an July 27 altercation.

That charge is still pending while Gallegos is held without bond in the Valencia County Detention Center. The victim, Les Fertic, was stabbed in the back of the neck and arm and later died at the University of New Mexico Hospital.