The charity thing is probably a legit mistake. I have a vague recollection of an email chain where he asked how many 911 hashlets were sold, someone told him the number, and he was like, "o shit."
Fraud has to be premeditated. Misappropriation is intentional. I don't think this was either. He probably botched the part of the system that was supposed to put a cap on the sales, and he probably had all sales money go into the same account as regular hashlet sales. By the time he realized that he sold too many, the money was spent, and all he had left was the $10k he actually did set aside for charity.
IF that were his only sin... meh...
But, he has a complete pattern of making it up as he goes along and if he doesn't care to keep his technical house in order... that shouldn't be a valid defense. He's had months to get it straight and only made a donation AFTER it started to make noise on the Internet. So, I'm going with Occam's razor and saying he used the money for his data center move instead.