Freed after federal murder conviction, suspect arrested in new slaying

Just months after beating a federal life sentence for a grisly 2012 murder, Andrew “Smiley” Gallegos is back in custody on state charges that he stabbed a Belen man to death in July.

Gallegos has been held without bond in the Valencia County Detention Center on a murder charge connected to the death of Les Fertic, who was stabbed in the back of the neck and arm. Fertic died at the University of New Mexico Hospital.

Gallegos was one of 12 alleged members of the ultra-violent Syndicato de Nuevo Mexico prison gang serving life sentences after being convicted of murder under the federal Violent Crimes in Aid of Racketeering Act, which is used to prosecute criminal enterprises such as gangs.

But the 10th Circuit Court of Appeals in April overturned the 2018 convictions of Gallegos, and his older brother, Joe Gallegos, in the death of Adrian Burns, whose body was discovered shot in the head, handcuffed and burned south of Belen in 2012.

The federal appeals court found there was sufficient evidence to convince a jury the brothers had killed Burns, whom the court described as a “small-scale dealer” who sold heroin to the Gallegos brothers for their personal use.

But the court concluded there wasn’t enough evidence to “elevate this murder to a federal crime under VICAR.” A conviction under the statute requires that a violent act be committed for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity.

There was no evidence that Burns was affiliated with SNM or any rival gang, the court found. “The Government presented no evidence, direct or circumstantial, that the Gallegos brothers murdered Mr. Burns for status in SNM. In place of evidence, the Government rests its case on a web of inferences too far removed from the facts.”

The night of his death, Burns wanted Joe Gallegos to pay a drug debt and went to his house. The car he used was found on fire hours later, with his body about 10 feet away, 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.

Joe Gallegos remains in federal prison because he was also convicted in the 2001 SNM-ordered slaying of an inmate at the Southern New Mexico Correctional Facility. The appeals court affirmed that conviction.

The Burns slaying was considered a cold case until the FBI launched a sweeping investigation of SNM in 2015. Some 160 members or associates were arrested, with about 120 prosecuted federally in recent years.

Formed in 1980, SNM has used murder, kidnapping and assault to intimidate other inmates as well as communities outside the prison walls for more than 30 years, the U.S. Attorney’s Office in New Mexico said in a news release.

A major focus of the FBI’s multi-year investigation was solving cold case murders that federal authorities believed were linked to SNM but never prosecuted.

Both Gallegos brothers, for instance, were arrested by New Mexico State Police after Burns’ body was found. But the charges were later dismissed because of insufficient evidence.

Some six years after Burns’ slaying, Andrew and Joe Gallegos were arrested after the FBI took another look at the case as part of the SNM prosecution.

During the brothers’ federal trial in 2018, 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.”

Meanwhile, the 13th Judicial District Attorney’s Office has filed a motion to detain Andrew Gallegos pending trial on his latest murder charge.

The defendant, who has a criminal history dating back to at least 1996, has prior convictions for criminal sexual penetration, negligent use of a deadly weapon, aggravated fleeing a law enforcement officer, and use of a telephone in connection with a drug offense, the motion stated.

“... (H)e has already demonstrated that he is capable of extreme and deadly violence,” stated the DA’s motion.

His defense attorney couldn’t be reached for comment Tuesday.

Prosecutors say the weight of the evidence in the new case is strong.

A probable cause statement filed in Belen Magistrate Court states that on July 27, Gallegos was seen on surveillance footage in a physical altercation with Fertic. The footage came from surveillance cameras at Fertic’s apartment complex, in the 400 block of Second Street in Belen.

Afterward, Fertic walked away bleeding profusely from the back of his neck and knocked on the window of a nearby trailer where his son was, telling him he had fallen down, the probable cause statement said. But police investigators determined that wasn’t true, given that the camera footage showed witnesses to the altercation yelling, “Stop it,” “Help him” and “Enough.”